Citation Nr: 1324723 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 03-10 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been received to reopen the issue of entitlement to service connection for a cervical disorder to include spondylosis. 2. Entitlement to service connection for a cervical spine disability, claimed as neck pain. 3. Entitlement to service connection for a left hip disability, to include as secondary to service-connected chronic low back pain with radiculopathy. 4. Whether an extension of a temporary total rating based on convalescence under 38 C.F.R. § 4.30 beyond November 1, 2001 is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran had active service from December 1973 to November 1974, and periods of active duty for training with the National Guard, to include in June 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2002 and May 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran was afforded a Travel Board hearing in March 2013. The Veteran submitted additional evidence in April 2013 with a waiver of Agency of Original Jurisdiction review. The issue of entitlement to a separate award of compensation for bilateral lower extremity radicular pain has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an extension of the total temporary rating for convalescence beyond November 1, 2001 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for cervical spondylosis, claimed as neck pain, was originally denied in an unappealed December 1997 rating decision. 2. Evidence received since the December 1997 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for cervical spondylosis; such evidence is not cumulative or redundant of evidence of record. 3. The evidence indicates that the Veteran's current cervical spine disability, diagnosed as cervical spondylosis with right C6-7 foraminal stenosis, and right C7-8cervical radiculopathy, is causally related to service. 4. The evidence indicates that the Veteran's left hip disability, diagnosed as avascular necrosis is causally related to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The December 1997 rating decision denying entitlement to service connection for cervical spondylosis, claimed as neck pain, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for cervical disorder to include spondylosis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. A cervical spine disability, diagnosed as cervical spondylosis and cervical radiculopathy, was incurred during active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. A left hip disability, diagnosed as avascular necrosis, is secondary to chronic low back pain. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in regards to the issues decided herein, no further discussion of compliance with VA's duty to notify and assist is necessary. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The 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, the Secretary shall reopen the claim and review it. New evidence is defined as existing evidence not previously submitted. 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). The United States Court of Appeals for Veterans Claims (Court) recently 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA denied entitlement to service connection for spondylosis at C5-6 and C6-7, with central disc protrusions, claimed as neck pain, in December 1997. The Veteran was notified of the decision; however, he did not appeal the denial or submit additional pertinent evidence within the appeal period. The basis for the denial was that there was no evidence that a cervical disorder was incurred in or aggravated by service, and no medical evidence showing an etiological relationship between residuals of a traumatic low back injury and cervical degenerative disc disease first shown many years after service. The evidence of record in December 1997 consisted of service treatment records showing that a low back injury was sustained when the Veteran's vehicle stopped abruptly and he hit the dash, VA examination and treatment records, to include a July 1992 study, report that his neck was sore. Private treatment records to include magnetic resonance imaging (MRI) showing diffuse osteophytic change from spondylosis associated with loss of disc water from degenerative disc disease. Evidence received since the December 1997 rating decision includes VA treatment records and examinations, private treatment records, and the Veteran's march 2013 testimony. Of import, in April 2013 Dr. Mahoney, a neurologist, indicated that after Fort Drum, New York injury the Veteran's cervical spine and C-root symptoms began, and persisted. Dr. Mahoney indicated that the Veteran's cervical disorder was at least as likely as not incurred in or caused by the claimed in-service injury. The Board finds that the April 2013 nexus opinion is new and material as it relates to a previously unestablished element of entitlement to service connection- namely, it supports the finding of cervical condition related to the Veteran's service. Accordingly, this evidence is sufficient to reopen previously denied claim of entitlement to service connection for cervical spondylosis. Service Connection The Veteran asserts that he has a current cervical disability as a result of an injury incurred in an in-service track vehicle accident at Fort Drum, New York. He reports having problems with his neck since this injury. In addition, the Veteran asserts that he has a current left hip disability, diagnosed as avascular necrosis, due to his service-connected lumbar spine disability. Generally, in order to establish direct service connection, three elements must be established. 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 current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected disorder is compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc). This claim was filed after the amendment effective October 10, 2006, such that the amended version of 38 C.F.R. § 3.310 is applicable to the claim on appeal. Medical records establish that the Veteran has a current cervical spine disability to include residuals of an anterior cervical microsurgical disc excision, C6-7 for relief of right C7 compressive radiculopathy. Medical records also establish that he has a current left hip disability, to include avascular necrosis. There is also evidence suggesting in-service incurrence of a cervical spine injury. Service personnel and treatment records from Fort Drum, New York show that the Veteran, while in the National Guard, was in a tracked vehicle when a sudden stop threw him forward causing him to strike his knees against the engine compartment and causing his upper body to twist to the right, resulting in low back pain. The Veteran has competently and credibly reported that his neck symptoms were present since this accident, and that although he reported that his neck hurt, the focus was on his back. Although the Veteran has not always accurately recalled the year of the accident, the documentation is of record showing it occurred in 1983. Finally, there is persuasive medical evidence that the Veteran's cervical spine disability is related to his vehicle accident in service. In November 2000, Dr. Mahoney indicated that the Veteran had new symptoms of chronic neck pain with intermittent numbness in the hands, and there was concern that there was a progressive underlying cervical problem. In April 2013, Dr. Mahoney, who has treated the Veteran at least since the 1990s, examined the appellant's current cervical spine disability, and considered his reported history of the accident in Fort Drum. Dr. Mahoney opined that the Veteran's cervical spine disability was at least as likely as not incurred in or caused by the claimed in-service injury, and reasoned that the Veteran did not experience cervical or neck problems prior to the Fort Drum accident. Although the examiner relied on reported history without claims file review, the reported history was deemed consistent and credible as regards a vehicular accident in service in Fort Drum. The evidence against a nexus between service and the cervical disability is less persuasive. A March 2002 VA examiner indicated the Veteran reported he was in a vehicle accident in 1984 and suffered a neck injury, and on examination the Veteran experienced decreased range of cervical motion with pain. There was MRI evidence of extensive degenerative changes at the C6-7 level with milder changes at C5-6 and C7-T1, with old postsurgical changes at C6-7. The examiner diagnosed spinal cord condition secondary to disc excision, status post lumbar L4-L5 lumbar disc excision. The examiner did not otherwise address the relationship between the Veteran's service and current cervical disability, and there was no underlying reasoning provided. There is also evidence suggesting that the Veteran's left hip disability is causally related to his service-connected lumbar spine disability. In November 2009 treatment notes, Dr. Mahoney indicated that inactivity and problems the Veteran experienced with his low back in trying to effect daily routine activities could have led to a hastening of his left hip problems. Dr. Mahoney also at that time indicated the left avascular necrosis was an outgrowth of the original injury that occurred while the Veteran worked as a civilian in Iraq in August 2004. In December 2011 Dr. Mahoney indicated that the Veteran had suffered trauma to his hips and low back in a civilian work injury in August 2004, and that the hip and lumbar injuries over time combined to worsen the effect to all skeletal structures and compounded each area of injury (hips/back), worsening his disabilities. In April 2013 Dr. Mahoney indicated that the Veteran's hip disabilities were at least as likely as not proximately due to or the result of the appellant's lumbar condition. He reasoned that the hip injuries were caused by lumbar disorder, which was a direct result of the Fort Drum injury in service. The Board observes that the treatment records reflect Dr. Mahoney's consideration of various factors affecting the Veteran's left avascular necrosis, to include not only the original Fort Drum accident injuring the Veteran's lumbar spine, but also a later August 2004 work incident in Iraq, which the appellant admits occurred during his time as a civilian. Nevertheless, the Board observes that such consideration does not negate his conclusion that the left avascular necrosis originated with the lumbar spine disability associated with the earlier in-service incident. Dr. Mahoney's opinions are afforded high probative value as they were made following more than a decade of providing treatment to the appellant, and contain a rationale that relies on the Veteran's reported history, which has been substantiated by service medical and personnel records. Regarding the Veteran's cervical spine, the evidence that is in conflict with Dr. Mahoney's opinions was provided by VA examiners, without taking the Veteran's reported symptomatology into account. Regarding the Veteran's left hip disability, there is no contrary evidence of record discussing the causal relationship between his left hip disability and his service-connected lumbar spine disability. As such, the evidence is in equipoise. Hence, the Board resolves reasonable doubt in the Veteran's favor, and finds that service connection for a cervical spine disability (diagnosed as spondylosis and radiculopathy) and for a left hip disability (diagnosed as avascular necrosis) is warranted. ORDER The claim of entitlement to service connection for cervical spondylosis is reopened. Entitlement to service connection for cervical spine disability, diagnosed as spondylosis with radiculopathy, is granted. Entitlement to service connection for a left hip disability, diagnosed as avascular necrosis, is granted. REMAND In the June 2005 Board remand, it was noted that the Veteran underwent a lumbar myelogram for his service-connected low back pain with radiculopathy in September 2001. The Board considered the record unclear as to, if or when, the Veteran recovered from this procedure, and requested a VA examination to determine the length of time for convalescence following the procedure. The Veteran was afforded a September 2007 VA examination for his lumbar spine and the examiner indicated that the Veteran's convalescence did not extend beyond November 1, 2001 for the lumbar myelogram, not including the cervical myelogram on the same date. In May 2008, the Board again remanded the claim of entitlement to an extension of a temporary total rating based on convalescence under 38 C.F.R. § 4.30, beyond November 1, 2001. The Board considered this claim to be inextricably intertwined with the claim of entitlement to service connection for a cervical spine disability. In light of this instant decision granting entitlement to service connection for a cervical spine disability, and the September 2007 examiner's opinion, which did not consider the cervical myelogram on the same date, another VA examiner's opinion addressing the length of convalescence required to recover from both procedures involving now service-connected disabilities is in order. Accordingly, the case is REMANDED for the following action: 1. Provide a VA orthopedist access to the claims folder, to include access to Virtual VA, and request that the physician provide an opinion addressing the length of any required convalescence beyond November 1, 2001 following the September 27, 2001 procedures for the appellant's service connected cervical and lumbar spine disabilities. The examiner must comment on the time of convalescence from the lumbar and cervical myelograms. 2. Then, the claim should be readjudicated. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs