Citation Nr: 1324168 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-03 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for a spinal disorder, claimed as degenerative disc disease of the mid-back. 2. Entitlement to service connection for a spinal disorder, claimed as degenerative disc disease of the mid-back. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1949 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO. A written transcript of that hearing has been added to the claims file. 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). FINDINGS OF FACT 1. In a June 1999 rating decision, the RO denied service connection for curvature of the spine between the shoulders with calcification. The Veteran did not file a timely appeal to this decision. 2. Evidence received since the June 1999 rating decision is new and material regarding the issue of service connection for a spinal disorder, as it contains evidence not previously considered that has some tendency to establish a current diagnosis of a spinal disorder which began during service. 3. The Veteran sustained injuries to the cervical and thoracolumbar spine while in service. 4. The Veteran currently has diagnoses of spondylosis with degenerative disc disease of the cervical and lumbosacral spine. 5. The Veteran's current spondylosis with degenerative disc disease of the cervical and lumbosacral spine is etiologically related to injuries sustained in service. CONCLUSIONS OF LAW 1. The June 1999 rating decision that denied service connection for curvature of the spine between the shoulders with calcification is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). 2. The criteria for reopening the Veteran's previously denied claim of service connection for a spinal disorder have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for spondylosis with degenerative disc disease of the cervical spine are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for spondylosis with degenerative disc disease of the thoracolumbar spine are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under Kent. Moreover, there can be no prejudice to the Veteran in proceeding with the current action because of the favorable nature of the Board's decision to reopen and grant service connection for a spinal disorder. Reopening of Service Connection for a Spinal Disorder In the current claim on appeal, the Veteran seeks to reopen service connection for a spinal disorder. In a June 1999 rating decision, service connection for curvature of the spine between the shoulders with calcification, claimed as due to a back injury, was denied. The RO found at the time that although the Veteran did experience a strain of the dorsal spine during service, such an injury was not chronic, and no nexus was established between any in-service disease or injury of the spine, and a current disorder. The Veteran did not initiate an appeal of this determination, or submit any new and material evidence prior to the expiration of the appeal period, and his claim therefore became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156(b), 20.1103 (2012). Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In the June 1999 rating decision, the RO determined that the evidence then of record did not reflect a current diagnosis of a spinal disorder which was related to an in-service disease or injury. The evidence considered at that time included service treatment records as well as post-service private and VA treatment records. Since the prior denial of the claim in June 1999, recent evidentiary submissions have included the Veteran's own written and oral contentions, as well as additional private treatment records. Specifically, treatment records and opinion statements have been received from several private physicians, to include a September 2012 statement from G.A.S., M.D. Dr. S. wrote that he is the Veteran's primary care physician, and he has reviewed the Veteran's service treatment records. Based on this review, and his personal examination of the Veteran, Dr. S. concluded that it at least as likely as not the Veteran's current complaints of the spine were related to an in-service injury. Having reviewed the recent evidentiary submissions, the Board finds that new and material evidence to reopen service connection for a spinal disorder has been received. Dr. S.'s September 2012 statement is new, in that it was not of record at the time of the prior final 1999 denial. This statement is also not cumulative and redundant of evidence already of record, and is material, as it provides a nexus between a current spinal disorder and an in-service disease or injury, the lack of evidence of which was the basis of the prior final denial of service connection. This evidence is also material because it relates to the unestablished fact that is necessary to substantiate the claim. Specifically, this evidence addresses the basis for the prior denial by establishing a nexus between a current disorder and an in-service disease or injury. The Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117-18 (2010). Given this standard, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for a spinal disorder. At the time of the 1999 denial, VA had no competent evidence establishing a nexus between any in-service disease or injury, and a current spinal disorder. The more recent medical evidence addresses this prior deficit in the record. For this reason, the Board finds that the additional evidence received since the June 1999 decision is new and material to reopen service connection for a spinal disorder. 38 C.F.R. § 3.156(a). Service Connection for a Spinal Disorder The Veteran seeks service connection for a spinal disorder. He contends that he injured his spine as the result of various in-service injuries to his back and neck. Specifically, he has alleged injuries to his spine resulting from a fall while walking along a slippery dock, and as a result of lifting heavy equipment. As a result, he contends he has current disorders of both the upper and low back. As an initial matter, VA generally recognizes that the spine is composed of two distinct segments, for VA disability purposes. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (allowing for separate disability ratings for thoracolumbar and cervical spine segments). Because the Veteran in the present case has referenced disorders of both the cervical and thoracolumbar spine, and the record reflects disabilities of both segments, the entirety of the spine will be considered by the Board in adjudicating the Veteran's claim. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any related disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, arthritis is listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. During service in February 1964, the Veteran sought treatment for pain of the shoulders and upper back after pulling on a heavy rope. On physical evaluation, tenderness was found along the vertebra of the dorsal spine. X-rays of the spine indicated a slight scoliosis of the cervical, dorsal, and middorsal regions, along with an osteophyte at T12. A strain of the dorsal spine was diagnosed, and the Veteran was given a trial of heat, massage, ultrasound, and at-home exercises. The Veteran's November 1968 service retirement physical was negative for any abnormality of the spine or back. On a concurrent report of medical history, the Veteran denied any history of recurrent back pain. In December 1968, however, the Veteran was given medication for muscle spasm of the back. He separated from service in January 1969. On receipt of the Veteran's initial service connection claim for a back disorder in December 1998, he reported that he had not sought medical care for his back following service. In February 2000, a VA X-ray of the lumbosacral spine confirmed degenerative changes of the spine. The Veteran has also received recent private treatment for his spine. A June 2004 MRI study of the spine indicated degenerative disc disease at L4-5 and L5-S1. Mild to moderate spinal stenosis was also seen along the lumbosacral spine. Also received was a July 2004 treatment summary from T.T.W., M.D., a private neurosurgeon. Dr. W. examined the Veteran that same month, and noted his reported history of a low back injury during service, as the result of a fall on a dock. Recent symptoms included pain of the low back, left hip, and left leg. On physical examination, Dr. W. diagnosed degenerative changes of the lumbosacral spine, confirmed via imagining studies, and a bulging disc at L4-5, with significant lateral recess stenosis. In August 2009, M.S.M., M.D., a private physician, drafted a letter describing his examination of the Veteran that same month. Dr. M. wrote that the Veteran reported a 1963 injury to the back resulting from a fall on a dock. He reported injuring his mid-back. Thereafter, he began to experience radiation of his pain both into the cervical region as well as the lumbar region and lower extremities. On recent MRI study, Dr. M. observed advanced cervical spondylosis. A July 2009 MRI of the thoracic spine was normal for the Veteran's age, with minor degenerative changes but without stenoses or disc herniations present. Dr. M. also authored a December 2010 letter in which he diagnosed the Veteran with significant cervical and thoracic spondylosis. Dr. M. opined that these findings were due to the spinal trauma experienced by the Veteran during service. The Veteran underwent a VA medical examination in December 2011. The examiner diagnosed a chronic back strain of the lumbosacral spine and degenerative arthritis with a chronic strain of the cervical spine. Regarding the etiology of these disorders, the examiner opined that it was less likely than not that these disorders were related to the Veteran's in-service injuries, as the Veteran did not seek post-service treatment for his back until 1996 at the earliest, more than 25 years after service separation. In September 2012, G.A.S., M.D., the Veteran's private primary care physician, authored a statement regarding the Veteran's claim. Dr. S. stated that the Veteran's in-service injuries to his spine "could" be related to his current arthritis of the spine. Dr. S. acknowledged that degenerative changes can be age-related, but also that skeletal injuries can lead to arthritis. In March 2013, the Veteran testified before a Veterans Law Judge. He stated that he initially injured his back during service, and later aggravated his back injury during service due to heavy lifting and other service tasks. He stated that he slipped on a dock while boarding a lifeboat, and later aggravated his back injury while changing heavy batteries on navigation buoys. He also reported ongoing back pain since service separation. Most recently, an April 2013 statement from Dr. M. was received in May 2013. Dr. M. attributed the Veteran's arthritis of the spine both to his age as well as "wear and tear". Dr. M. also stated that it was "likely" the Veteran's spondylosis was present during service. After considering the totality of the record, the Board finds the evidence to be in relative equipoise. The December 2011 VA medical examiner concluded a causal nexus between the Veteran's in-service back injuries and his current diagnoses to be less likely than not due to the length of time between the initial injuries and the Veteran's post-service treatment and diagnoses. Admittedly, a lengthy period without complaint or treatment can serve as evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran has stated, however, that his back pain has been chronic since service, and he is competent to testify regarding such observable symptomatology as back pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board also finds the Veteran's testimony in that regard to be credible. Also submitted by the Veteran in support of his claim are the various medical opinion statements from Drs. M. and S. These examiners personally examined the Veteran, and diagnosed degenerative changes and spondylosis of the cervical and thoracolumbar spine. These current disorders were attributed by these examiners to the Veteran's in-service injuries to the back, at least some of which are established within the service treatment records. After finding an approximate balance of positive and negative evidence regarding the claim on appeal, the claimant shall be given the benefit of the doubt. See 38 U.S.C.A. § 5107. Thus, in the present case, the Board concludes that separate service connection awards are warranted for spondylosis with degenerative changes of the cervical and thoracolumbar spine. ORDER The Veteran having submitted new and material evidence, his claim for service connection for a spinal disorder is reopened. Service connection for spondylosis with degenerative arthritis of the cervical spine is granted. Service connection for spondylosis with degenerative arthritis of the thoracolumbar spine is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs