Citation Nr: 1324833	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  09-22 627	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Whether new and material evidence has been presented to reopen a service connection claim for a cervical spine disability and if so, whether service connection may be granted.


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In April 2011, February 2012, and February 2013, the Board remanded this issue for further evidentiary and procedural development.  The case has now been returned to the Board for further appellate action.

The Board notes that the RO reopened the Veteran's claim of entitlement to service connection for a cervical spine disability and denied it on the merits in the March 2009 rating decision.  Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

The Board observes that the Veteran's representative has withdrawn from representation of the Veteran.  In a letter dated June 2013, the Veteran was given the opportunity to authorize new representation and provided instruction as to obtaining representation.  No response was received.  As such, the Veteran has no duly appointed representative at this time.


FINDINGS OF FACT

1.  The Veteran's request to reopen the claim for service connection for a cervical spine disability was previously denied by a January 2007 rating decision.  The Veteran did not appeal and the decision became final.

2.  The additional evidence presented since the previous final denial is new and relates to an unestablished fact necessary to substantiate the claim.

3.  The Veteran's current cervical spine disability manifested many years after his discharge from service, and is not otherwise shown to be etiologically related to service.



CONCLUSIONS OF LAW

1.  The January 2007 RO rating decision that declined to reopen the claim for service connection for a cervical spine disability is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

2.  New and material evidence has been received to reopen the claim for 
service connection for a cervical spine disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  The requirements for establishing service connection for a cervical spine disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this case, letters issued in May 2008 and April 2011 provided notice regarding what information and evidence is needed to substantiate his claim, including on a secondary basis, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The same letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the service treatment records (STRs), service personnel records, post-service private and VA treatment records, the October 2008 VA examination report, and Social Security Administration records.  

The Veteran also identified two providers, the Asheville VA Medical Center (VAMC) and Mission St. Joseph Hospital as having treated him for a cervical spine disability in 1984 and from 1989 to 2008, respectively.  Both of these providers submitted letters stating that they have no record of treating the Veteran.

The Board also notes that actions requested in the prior remands have been undertaken.  Indeed, corrective VCAA notice was provided, Social Security records were obtained, and additional VA treatment records were obtained.  Attempts to obtain private treatment records were made, and the Veteran was notified that such records were not available.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).  

II.  New and Material Evidence

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement (NOD) is filed within one year of the notice of decision.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).  

The Veteran first sought service connection for a cervical spine disability in May 2002.  The RO denied his claim in a November 2002 rating decision, finding that a cervical spine disability neither occurred in nor was caused by service and there was no evidence of a current chronic condition.  The Veteran did not file an NOD or submit additional relevant evidence within one year of that rating decision.  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the November 2002 rating decision became final.  38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103.

In November 2006 the Veteran filed to reopen the claim of entitlement to service connection for a cervical spine disability.  In January 2007, the RO denied the claim to reopen, finding that no new and material evidence had been submitted.  The Veteran did not file an NOD or submit additional relevant evidence within one year of that rating decision.  See 38 C.F.R. § 3.156(b); Bond; Buie.  Thus, the November 2006 rating decision became final.  38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103.

In May 2008, the Veteran submitted an NOD with the January 2007 denial.  However, because the one-year appeal period had expired, and the decision had become final, it was properly treated by the RO as a request to reopen the claim.  In the March 2009 RO rating decision, the claim for service connection for a cervical spine disability was considered by the RO on the merits and denied, presumably because it was based only on a theory of secondary service connection.  However, pursuant to Boggs v. Peake, 520 F.3d 1330, 1336-1337 (Fed. Cir. 2008), "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C.A.] § 7104(b)."  

Where, as here, a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2002).  New evidence means existing evidence not previously submitted to agency decision makers.  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). 

VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible.  See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent).

The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  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.  

The evidence considered in the final January 2007 denial consisted of the Veteran's STRs, service personnel records, lay statements, and VA treatment records from Nebraska-Western Iowa Health System dated February 1999 to August 2006.  The basis of the final denial was that no new and material evidence had been submitted.  The bases of the November 2002 final denial were that a cervical spine disability neither occurred in nor was caused by service and there was no evidence of a current chronic condition.  

Evidence added to the record since the January 2007 rating decision consists of 
VA treatment records, private treatment records, a VA examination report, and additional lay statements from the Veteran.   

The newly submitted treatment records show that as early as February 2003, the Veteran had a diagnosis of degenerative joint disease (DJD) of the cervical spine.  Private treatment records show ongoing treatment for this diagnosis.  This evidence is "new," as it was not previously submitted to agency decision makers.  It is also material, as it relates to an unestablished fact necessary to substantiate the claim: the presence of a current neck disability.  Accordingly, the claim for service connection for cervical spine disability is reopened.  See Shade, supra.  

The Board notes that the RO reopened the Veteran's claim of entitlement to 
service connection for a cervical spine disability and denied it on the merits in the March 2009 rating decision.  Thus, the Veteran is not prejudiced by the Board's consideration of his claim for service connection on the merits.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

III.  Service Connection 

The Veteran seeks service connection for a cervical spine disability as due to an injury sustained during active service.  Initially, in his May 2002 original claim, he listed the onset date as Summer 1969.  Beginning with his November 2006 claim, he contended that his cervical spine disability is the result of a motor vehicle accident (MVA) during service in July 1970 when he was driving a government Jeep and someone slammed into his vehicle.  In March 2007 he reported to a VA physician that neck pain started 30 years ago (roughly 1977) following a roll-over Jeep accident, at which time cervical vertebra were crushed.  He alternately contends that his cervical spine disability is secondary to a lumbar spine disability.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease 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).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309(a).

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Although the Veteran contends that his neck disability began in service or is due to a motor vehicle accident in service, his service treatment records (STRs) are silent as to cervical spine complaints, treatment, or diagnosis.  His STRs are also negative for an MVA.  Three STRs dated in May 1970 show a back complaint, described by the physician as paraspinous spasm, that began on May 14, 1970.  On May 21, 1970, he reported a fall from a 2.5 ton truck resulting in reinjury to his back.  In June 1970 the Veteran reported pain in the middle portion of his back, resulting in an impression of low back strain and a referral to an orthopedic clinic.  The June 1970 orthopedic clinic consult diagnosed chronic low back strain for six weeks, with mid-dorsal back pain of a chronic nature.  His separation examination in October 1970 revealed no spine disability, and although other complaints were noted and addressed by the examiner, "crushed vertebrae" were not mentioned.  Indeed, the examiner noted the Veteran denied significant medical or surgical history.  

Following service, there is a mention of unspecified arthritis in a May 1999 VA treatment record, but the first recorded complaint of neck pain is in the Veteran's original May 2002 claim application.  The first medical evidence of neck pain is a recorded complaint in an August 2002 VA treatment record, and the first diagnosis of record is the February 2003 diagnosis of DJD of the cervical spine.


In December 2007 he was admitted overnight to Faith Regional Health Services for psychiatric symptoms and a suspected oxycodone overdose.  He reported a history of crushed vertebrae and intervertebral disc disease (IVDD) from an MVA in 1970.  In January 2008 he reported to a private psychiatrist at Behavioral Health Specialists that he had been suffering with pain in his neck since an MVA that occurred during service.  He reported to the October 2008 VA examiner that his cervical spine pain began in 1974 in basic training.  

The evidence of record shows that the Veteran has a currently diagnosed cervical spine disability.  A cervical spine CT performed by Faith Regional Health Services in December 2005 showed degenerative disc disease (DDD) at C5 through C7.  A January 2006 x-ray revealed DJD of the cervical spine, and the October 2008 VA examiner diagnosed DDD at C5-6 and C6-7 and neural foraminal narrowing at 
C4-5, C5-6, and C6-7.  

Although the Veteran has a current disability, the Board finds the preponderance of the evidence is against the claim.  Here, while the Veteran is competent to testify that neck pain began in service or that he was involved in an MVA in service, the Board does not find his statements credible.

The Veteran's account of the onset of his cervical spine symptoms has been internally inconsistent.  He has alternately reported that it began in Summer 1969, July 1970, 1974, and roughly 1977.  The account is also inconsistent with other evidence submitted on behalf of the Veteran.  For example, he occasionally reported that his cervical vertebrae had been crushed in an MVA but there is no objective evidence of crushed vertebrae or an MVA, despite the complete STRs and personnel records that are in the claims file.  Details of his account are also 
facially implausible, such as a report of being hurt in basic training in 1974 when 
he was discharged from service in February 1971.  Moreover, the Board notes that the Veteran's veracity in general is also suspect, in light of the significant inconsistencies he reported in response to other claims and a statement by a VA psychologist in December 2008 noting deceitfulness on the part of the Veteran as indicated by repeated lying and conning others for his own pleasure.  Thus, the Board finds the Veteran's assertions of suffering a neck disability or was 
involved in an MVA during service, with pain continuing since service, is not credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.").

The Board acknowledges that following the Veteran's December 2007 overnight hospitalization for overdose, the discharging physician, Dr. G., diagnosed "chronic neck pain secondary to crushed vertebrae," IVDD from an MVA in 1970, and chronic headaches likely secondary to chronic cervical disease.  However, there is no indication that Dr. G. reviewed any of the Veteran's medical records or STRs.  Moreover, no x-ray or objective testing of the cervical spine was conducted, nor does there appear to have been a physical examination of his spine.  Dr. G's diagnosis appears to be based solely on the Veteran's lay report of his medical history.  Such history has been found to lack credibility.  Thus, Dr. G's opinion is based on an inaccurate factual premise, and has no probative value.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

Conversely, the October 2008 VA examiner conducted a thorough record review, interview of the Veteran, and physical examination.  She opined that the Veteran's cervical spine condition was less likely than not related service, to include an acute injury in June 1970 (falling from the 2.5 ton truck).  She provided a rationale for this opinion, noting that there is no complaint or treatment of the cervical spine in service (only of the low and mid back) and that there is no evidence of complaint until 21 years after service.  The separation examination in 1971 was normal with no complaints and the medical evidence shows he first complained of his cervical spine pain in 2002.  The examiner addressed the Veteran's lay statement that he was first treated for cervical spine disability in 1984 in North Carolina, but notes that this statement is not consistent with any other medical or lay records, and that the Asheville VA Medical Center had no record of treatment in 1984.  The VA examiner reviewed the claims file, including lay statements, examined the Veteran, and provided an adequate rationale for her opinion.  The Board therefore finds this medical opinion is adequate and highly probative.  See Guerrieri v. Brown, 4 Vet. App. 467, 471 (1993) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.").  

In summary, there is no competent and credible evidence indicating that the Veteran had a chronic cervical spine disability during service or for many years thereafter, and the most probative evidence is against a finding that his currently diagnosed DJD and DDD is related to service.  Additionally, as arthritis was not shown within one year of discharge from service, service connection on a presumptive basis pursuant to 38 C.F.R. § 3.309(a) is not warranted. 

As a final matter, the Board notes that the Veteran has also claimed service connection for a cervical spine condition as secondary to his lumbar spine condition.  Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a).  However, the Veteran's lumbar spine condition is not a service-connected disease or injury.  Indeed, service connection for that disability was denied by the Board in February 2013.  Therefore, his claim cannot be granted on the basis of secondary service connection.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a).

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

New and material evidence having been received, the claim for service connection for a cervical spine disability is reopened, and to this extent only the appeal is granted.

Service connection for a cervical spine disability is denied.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs