Citation Nr: 1315313 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 10-27 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1950 to October 1954 and from October 1961 to August 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for cervical spine disability, on de novo review, and entitlement to a TDIU rating, are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. An unappealed August 2005 rating decision denied the Veteran service connection for arthritis of the neck, based essentially on findings that such disability was unrelated to his service. 2. Evidence received since the August 2005 rating decision includes an August 2009 VA medical opinion indicating that the Veteran's cervical spine disability was caused by his service-connected lumbar spine disability; relates to an unestablished fact necessary to substantiate the claim of service connection for a cervical spine disability; and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for cervical spine disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). It applies to the claim to reopen. However, there is no need to belabor the impact of the VCAA on the matter as any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321, 327 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system, which at this time contains no pertinent evidence or information), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. An unappealed August 2005 rating decision denied the Veteran's claim of service connection for neck arthritis, essentially on the basis that such disability was unrelated to his service. He did not submit any additional evidence in the year following, and that decision is final. The evidence of record in August 2005 included the Veteran's STRs, including his May 1962 service separation physical examination report, which are silent for any complaints, findings, treatment, or diagnoses related to his cervical spine/neck. Postservice treatment records included a June 1992 VA X-ray report noting that the Veteran has disc disease at C5, C6, and C7 with osteophyte formation. On April 1994 VA examination, it was noted that in 1972, the Veteran was sustained injuries in a motor vehicle accident including anterior subluxation of the 6th cervical vertebra. In 1973, he sneezed and aggravated the subluxation, and received chiropractic treatment. The diagnosis on examination was cervical spinal paravertebral muscular spasm. A March 1997 VA X-ray report notes that the Veteran had spondylosis in the lower cervical spine region. A January 2004 private medical record notes that in December 2003, the Veteran's vehicle was "rear ended" by another vehicle. Since then, he had had cervical occipital headaches. The impression was cervical spondylosis with no evidence of any central stenosis (based on MRI studies). Evidence received since the August 2005 rating decision includes an August 2009 VA examination report which contains a medical opinion that the Veteran's current cervical spine degenerative disc disease was caused by lifelong mechanical stresses caused by his service-connected myofascial L4-L5 degenerative disc disease. Because the Veteran's claim of service connection for cervical spine disability was previously denied based essentially on findings that it was unrelated to his service, for evidence to be new and material, it would have to tend to show that the disability is related to his service. The Veteran has established service connection for a low back disability. The August 2009 VA examination report supports a secondary service connection theory of entitlement, thus relating the Veteran's cervical spine disability to his service. This evidence is presumed credible. It relates to an unestablished fact necessary to substantiate the claim, and (especially in light of the low threshold standard endorsed by the Court in Shade (cited above)), raises a reasonable possibility of substantiating the claim.. Accordingly, the evidence added to the record is both new and material, and the claim must be reopened. De novo review of the claim is discussed in the remand below. ORDER The appeal to reopen a claim of service connection for a cervical spine disability is granted. REMAND While the notice provisions of the VCAA appear to be satisfied, the Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims. See 38 C.F.R. § 3.159 (2012). Regarding service connection for a cervical spine disability, cervical spine degenerative disc disease at C5-C7 has been diagnosed. The Veteran asserts that such disability was caused (or aggravated) by his service-connected lumbar myofasciitis with L4-5 disc disease. In August 2009, a VA physician endorsed a medical opinion by a VA physician's assistant, to the effect that the Veteran's cervical spine disability was caused by lifelong mechanical stress due to his service-connected myofascial L4-L5 degenerative disc disease. In December 2009, a VA internal medicine physician indicated that the Veteran's cervical spine disability was not caused or permanently aggravated by his service-connected lumbar myofasciitis. [Notably, neither of these reports was by an orthopedist.] The reasoning for the latter opinion, in part, was that the degree of posture disturbance from the Veteran's lumbar myofasciitis was not severe enough to cause the degree of abnormal mechanical stress that would be required to permanently aggravate his cervical spine disability. The Board notes that at the time of that examination, the Veteran was noted to have normal posture and gait and no abnormal spinal curves. The August 2009 examiner had noted that in 1962 (at the time of the Veteran's lumbar spine injury), before July 1962 manipulation of the lumbar spine joint which brought about definite improvement, the Veteran had had an abnormal scoliosis and left list and abnormal posture, stance, and gait. A March 1963 VA examination report noted a normal posture. The August 2009 examiner felt that over the years, the abnormal scoliosis and left list and abnormal posture, stance, and gait (shown prior to manipulation in July 1962) had lead to an increased mechanical stress on the cervical spine that lead to premature degenerative disc disease. A March 1963 VA examination report notes that the Veteran had had no medical treatment since service discharge. The record does not include reports of any treatment which the Veteran may have received between March 1963 and 1992 (when VA records show degenerative disc disease and osteophyte formation in the cervical spine). An April 1994 VA examination report notes that in 1972, the Veteran was in a motor vehicle accident with subluxation of the 6th cervical vertebra, that X-rays were taken at that time, and that in 1973 he sneezed, aggravating the subluxation and received some relief from chiropractic treatment. The examiner noted that a chiropractor continued to provide the Veteran temporary relief, and that X-rays in March 1992 revealed lumbar spine straightening with loss of the normal lordosis due to muscle spasm. Thus, the record reflects that the Veteran received more contemporaneous treatment (records of which may contain pertinent information). While the likelihood of relevant pre-1992 medical records being available at this time may be minimal, there appears to have been no previous attempt to secure such records; and as such records may contain information having substantial bearing on the matter at hand, they must be sought. Moreover, as the VA medical opinions obtained to date are based on an incomplete record and conflict, and since neither is by an orthopedist or includes adequate explanation of rationale, another examination to secure an adequate medical opinion in this matter is necessary. Regarding the claim for a TDIU rating, the Veteran indicated in September 2009 that his service-connected lumbar spine, depression, hearing loss, and tinnitus, together with the cervical spine disability for which he seeks service connection, combine to render him unemployable. The record does not include a VA medical opinion regarding the combined impact of his service-connected disabilities on his employability. Accordingly, a VA medical opinion in connection with the TDIU claim is necessary under 38 C.F.R. § 3.159 (2012). The Board also observes that the claim for a TDIU rating is inextricably intertwined with the claim seeking service connection for a cervical spine disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should arrange for exhaustive development to secure for the record any available reports of treatment the Veteran received for lumbar and cervical spine problems from 1963 to present, particularly those related to the 1972 - 1973 private hospital and chiropractic treatment (chiropractic treatment through 1994) identified in the record. 2. After the development sought above is completed, the RO should arrange for the Veteran to be examined by an orthopedist to determine the nature and likely etiology of his cervical spine disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran the examiner should provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each cervical spine disability found. (b) As to each cervical spine disability entity diagnosed, please opine whether it is at least as likely as not (a 50% or better probability) that such disability was caused or aggravated by the Veteran's service-connected lumbar spine disability? The examiner must explain the rationale for the opinions, citing to supporting factual data, if possible. 3. The RO should thereafter arrange for the Veteran to be examined by an appropriate physician to ascertain the combined impact of his service connected disabilities on his employability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: What is the combined impact of the Veteran's service-connected lumbar myofasciitis with L4-5 disc disease, mood disorder with depression, bilateral hearing loss, and tinnitus (and cervical spine disability, if such is found to be secondary to his service-connected lumbar disc disease) on his employability? Specifically, do they render him incapable of participating in any substantially gainful employment consistent with his education and occupational experience (but disregarding his age as that is not a factor for consideration). Please identify the types of employment that would be precluded by the service connected disabilities and those (if any) that remain feasible despite the disabilities. The examiner must explain the rationale for all opinions. 4. The RO should then review the record and re-adjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs