Citation Nr: 1325911 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-31 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received with respect to the issue of entitlement to service connection for a cervical spine disability with radiculopathy. 2. Entitlement to benefits under 38 C.F.R. § 4.30 based on convalescence due to surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1960 to August 1963, and attended the United States Military Academy at West Point from June 1956 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in which the RO denied entitlement to service connection for a cervical spine disability with radiculopathy. Although the most recent rating decision failed to indicate that the issue was one of new and material evidence, the claim of entitlement to service connection for a cervical spine disability was originally denied in a July 1992 rating decision. Thereafter, it was denied administratively in October 2002, based on the Veteran's failure to submit new evidence in support of his claim. Thus, this is a claim to reopen. As the Board is reopening and granting the claim, there is no prejudice to the Veteran in failing to be apprised of the true nature of the issue on appeal. The Veteran testified at a May 2013 videoconference hearing before the undersigned; the hearing transcript has been associated with his Virtual VA 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 July1992 rating decision, VA denied entitlement to service connection for a cervical spine disability. 2. In an October 2002 administrative decision, VA declined to reopen the previously denied claim of entitlement to service connection for a cervical spine disability, based on the Veteran's failure to submit additional evidence in support of his claim. 3. Evidence associated with the record since the October 2002 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disability. 4. The Veteran's cervical spine disability had its onset while he served in the United States Military Academy at West Point. 5. The Veteran indicated during his May 2013 hearing, which was subsequently transcribed and the transcript associated with his Virtual VA file, that he wished to withdraw his claim for entitlement to benefits under 38 C.F.R. § 4.30, as he had not had cervical spine surgery. CONCLUSIONS OF LAW 1. The July 1992 rating decision that denied entitlement to service connection for a cervical spine disability, and the October 2002 administrative decision that declined to reopen the claim for service connection, are 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 the claim of entitlement to service connection for a cervical spine disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156 (2012). 3. The criteria for service connection for a cervical spine disability with radiculopathy have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). 4. The criteria for withdrawal of a substantive appeal as it relates to the issue of entitlement benefits under 38 C.F.R. § 4.30 (2012) based on a disability of the cervical spine, have been met. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawal of Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In May 2013, at his videoconference hearing, the Veteran informed the Board that he no longer wished to pursue his appeal of entitlement to benefits under 38 C.F.R. § 4.30 as related to his cervical spine disability. Hence, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue and it is dismissed without prejudice. VA's Duties to Notify and Assist As the Board is granting in full the benefits sought - i.e., reopening and granting the claim for service connection - there is no need to address at this time VA's compliance with 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2012) or 38 C.F.R. § 3.159 (2012). New and Material Claim The Veteran's original claim of entitlement to service connection for a cervical spine disability was denied in July 1992. The Veteran did not appeal, and that decision is final. 38 C.F.R. § 20.1103. He filed a second claim for service connection for a cervical spine disability in October 2002. By way of an October 2002 administrative decision, the RO informed him that he had to submit new and material evidence to support his claim, or the claim would remain denied; the Veteran did not submit any response to the RO's October 1992 letter, and that decision too became final. Id. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. "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. To reopen a previously disallowed claim, new and material evidence must be presented since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran is seeking to reopen a claim for service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In October 2002, the Veteran's claim for service connection was denied based on a finding that he had not submitted new and material evidence since a July 1992 decision, which determined that there was insufficient evidence of a nexus between any event in service and a cervical spine disability. Thus, new and material evidence must be presented to show a nexus between the Veteran's in-service neck injury and his present cervical spine disability. During the course of the present appeal, the Veteran presented evidence in the form of medical opinions from Drs. G.S.M. and W.J.B., each of which associate his current cervical spine disability with an injury suffered while playing football at West Point. The Board finds that this evidence is "new," in that it did not exist at the time of the July 1992 rating decision that denied service connection. The opinions are also "material," in that they suggest a nexus between the in-service injury and the current disability. 38 C.F.R. § 3.156. Therefore, having found that the Veteran has presented new and material evidence, the claim of entitlement to service connection for a cervical spine disability is reopened. 38 C.F.R. § 3.156. Service Connection Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran has a current diagnosis of cervical spondylosis and stenosis with radiculopathy. Additionally, he has presented credible evidence, though his testimony, consistent statements to medical providers, and the statement from a friend from West Point, now a retired Colonel, that he suffered a neck injury while playing varsity football at West Point in 1957. The only remaining issue with regard to the issue of service connection is whether there is a nexus between the in-service injury and the current cervical disorder. Dr. G.S.M. presented an opinion in December 2012 that the current state of the Veteran's cervical spine is typical of the late effects of a neck injury of the kind the appellant sustained in 1957, and that the current disability could be related to that trauma. In May 2013, Dr. G.S.M. clarified his opinion, and stated that it was at least as likely as not that the cervical spine disability was due to a football injury at West Point. Dr. G.S.M.'s opinion is supported by an opinion presented by Dr. W.J.B. Based on a review of the Veteran's medical record and his statements, he opined that it was "most likely" that the appellant sustained an injury to the disc of his neck in 1957, which then subsequently degenerated, resulting in the present-day cervical spine problems. These opinions are adequate to support a finding that the current cervical spine disability is due to the 1957 neck injury. The Board acknowledges that there is one opinion of record contrary to the opinions proffered by Drs. G.S.M. and W.J.B. In July 2011, following a VA examination, the examiner opined that it was a "very long stretch" to associate the 1957 neck injury with the degenerative changes in the spine noted in 2006, 2007, and 2008. The VA examiner stated that if the Veteran had a significant injury in 1957, he would have required treatment much earlier than in the 1990s, and that the current disability was due to age-related degeneration. The July 2011 examiner's opinion, however, is not probative. In reaching the negative nexus opinion, the examiner relied on the invalid factual premise that the Veteran had not received treatment for his cervical spine for over 33 years after the 1957 injury. In actuality, the Veteran was treated for cervical myositis from January 1979 through August 1984, as reflected in the record. A medical opinion such as this that is not factually accurate is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Thus, as there is evidence of an in-service injury, a current disability, and a competent nexus between the two, the Board finds that service connection for a cervical spine disability with radiculopathy is warranted. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). ORDER New and material evidence having been received, the claim of entitlement to service connection for a cervical spine disability is reopened. Entitlement to service connection for a cervical spine disability with radiculopathy is granted. The appeal is dismissed as to the issue of entitlement to benefits under 38 C.F.R. § 4.30 as related to a disability of the cervical spine. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs