Citation Nr: 1324902 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-06 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a back disability, and if so whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim for service connection for a neck disability, and if so whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to May 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied reopening the claims on appeal for service connection. The issues of entitlement to service connection for a back and neck disability are addressed in the Remand that follows the Order section of this decision. FINDINGS OF FACT 1. Service connection for a back disability and a neck disability was denied in a September 1977 RO decision that was not appealed. 2. Evidence received since the September 1977 decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the September 1977 RO decision, the criteria for reopening the claim for service connection for a back disability are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. As new and material evidence has been received since the September 1977 RO decision, the criteria for reopening the claims for service connection for a neck disability are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2002). 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 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). 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis Initially, the Board notes that the reopening of a claim is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits, the Board must determine this issue on its own. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Review of the file shows the RO denied service connection for a back disability and neck disability in June 1977, based on the determination that service medical records did not show any claimed neck and back injuries or the residuals thereof. Subsequently, in a deferred rating decision in September 1977, the RO noted that additional service treatment records were received, showing a statement of medical examination and status which indicated the Veteran suffered a cervical muscle strain on April 1973. However, the RO found that the Veteran's separation examination failed to reveal any evidence of residuals and the denial remained unchanged in a September 1977 decision. The September 1977 decision was not appealed. The evidence received since the September 1977 decision includes correspondence from the Veteran in July 2009, detailing an in-service fall from a tank that he asserts caused his back and neck disabilities, and private treatment records, showing treatment for and various diagnoses of back and neck disabilities. The Veteran's statement provides the first detailed account of his claimed in-service injury. The private treatment records also indicate potential alleged residuals of the claimed in-service injury. The foregoing evidence is not cumulative or redundant of the evidence previously of record. Moreover, assuming its credibility for the purpose of the evaluation of whether the evidence is new and material, it is sufficient to raise a reasonable possibility of substantiating the claims. Justus v. Principi, 3 Vet. App. 510 (1992) Accordingly, this evidence is new and material, and reopening of the claim is in order. ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for back disability is granted. The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for neck disability is granted. REMAND In a December 2009 VA examination report, the VA examiner diagnosed cervical degenerative disc disease (DDD), cervical degenerative joint disease (DJD), cervical canal stenosis, lumbar DDD and lumbar DJD. The examiner stated that the Veteran's case "suffers from minimal medical evidence in his post service discharge period until around 2006 when his neck condition became most problematic." The examiner also stated that there was no clear evidence direct or indirect (as in the case of the neck) of any service connection by way of lower back or lumbar injury in the service medical records reviewed; should additional service medical records for the lumbar area become available, this issue would need to be revisited as the Veteran was of the opinion that the lumbar area was injured in the aforementioned "tank incident". The examiner stated that his opinion focused on the neck condition alone. The examiner opined that it was at least as likely as not that the Veteran's in-service injury was associated with a soft tissue injury of the muscles and ligaments of the neck that was initially recurrent and became over the years a chronic cervical strain; however, it was less likely as not that his more recent onset (2006) of radicular or arm/shoulder pain (which may in fact be of other etiologies all together than neck origin) was associated with or caused by this chronic cervical strain. Furthermore, it was less likely as not that the documented event in April 1973 was the cause of his currently symptomatic multilevel degenerative disc and facet arthritis as opposed to age and genetic related deterioration. The December 2009 VA examiner's opinion is inadequate for adjudication purposes because he appeared to base part of this opinion on absence of treatment until 2006 for the neck disability. Therefore, the rationale is inadequate because it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Moreover, the examiner stated that there was no clear evidence of any service connection by way of lower back or lumbar injury in the service medical records reviewed. However, the STRs show in a June 1973 statement of medical examination and duty status that the Veteran hurt his back while playing basketball and went on sick call two days later. He was later admitted to the surgical hospital and was put on profile but did not return. The Veteran also reported recurrent back pain in a May 1977 report of medical history. Therefore, the Board has determined that an addendum opinion is warranted to consider this evidence before the Board decides the reopened claims. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding medical records pertaining to post-service treatment or examination of the Veteran's back and neck. 2. Thereafter, the claims folder should be provided to the VA examiner who conducted the December 2009 VA examination. The examiner should be requested to review the claims folder and provide an addendum in which he responds in the affirmative or the negative to the following question: Is it as likely as not (a 50 percent or better probability) that the Veteran's current back and/or neck disabilities originated during active service or are otherwise etiologically related to his active service? The examiner should set forth a complete rationale for all opinions expressed and conclusions reached, including discussion of the aforementioned STRs and in keeping with the holding that it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Id. If the December 2009 examiner is unavailable, the claims folder should be reviewed by another physician with appropriate expertise who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran unless he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs