Citation Nr: 1326049 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-07 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a cervical spine/neck disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1971 to September 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO. At his request the Veteran was scheduled for videoconference hearing before the Board; he failed (without giving cause) to report for such hearing scheduled for April 18, 2012. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). The matter of service connection for a low back disability, on de novo review, is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. A cervical spine injury in service is not shown; a neck disability was not manifested in service; and the preponderance of the evidence is against a finding that the Veteran's current neck disability is related to his service. 2. A December 1971 rating decision denied the Veteran service connection for a low back disability based essentially on a finding that such disability preexisted service and was not aggravated therein. 3. Evidence received since the December 1971 rating decision includes evidence not of record at the time of that decision, suggests the Veteran's low back disability may be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability; and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Service connection for a cervical spine disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. New and material evidence has been received, and the claim of service connection for a low back disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim for service connection for a cervical spine disability prior to its initial adjudication. A November 2007 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. Regarding the petition to reopen a claim of service connection for a low back disability, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. A November 2007 letter provided the Veteran notice that was Kent-compliant , and also explained the evidence VA was responsible for providing and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO did not arrange for a VA examination/opinion as to either of the claims. The Board has considered whether an examination is necessary regarding the Veteran's cervical spine disability claim. Absent any competent (medical) evidence suggesting that the Veteran's cervical spine disability may be associated with his service, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). Development of the reopened claim of service connection for a low back disability is discussed in the remand below. The Board finds that the record includes adequate competent evidence to allow the Board to decide the matters addressed on the merits. See 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. Service Connection for a Cervical Spine Disability Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's STRs are silent for injury, complaints, treatment, or diagnoses related to a neck disability. On September 1971 service separation examination, no cervical spine complaints or pathology were noted. [He was found to have a low back disability that preexisted service, and was not aggravated therein.] The Veteran's initial claim for VA disability benefits (for his back disability/spondylolysis) was filed in September 1971. At that time there was no mention of a neck disability. 1987 to 1995 private treatment records from the Veteran's orthopedist note treatment for low back complaints, including treatment for a Grade I spondylolysthesis. In October 1991, the orthopedist noted that the Veteran is a painter who works double shifts, and requires pain medicine to keep him going. In August 1998, the Veteran presented to his private physician with a complaint of neck pain. An October 1998 private treatment record notes the Veteran complained of a knot on his neck, which was determined to be a sebaceous cyst. An X-ray of the cervical spine was interpreted as showing spondylosis and disc space narrowing at C5-C6 with mild to moderate neuro foraminal encroachment at this level. 2004 private treatment records note complaints of neck/cervical spine pain. An October 2004 record notes degenerative disc disease (DDD) of the cervical spine. In September 2008, the Veteran's son submitted a statement attesting to his father's complaints of back and neck pain and stating that his father told him his pain was due to an injury in service. He also noted his father worked in construction and when he would come home from work, he would lay on the floor to help ease the pain. In October 2008, the Veteran's wife submitted a statement indicating that she met the Veteran in 2001 and he was working in construction at least six days a week. She related that he complained about neck pain, attributed to an injury in service. The Veteran's ex-wife also submitted a statement, indicating that he experienced a back problem in service, and later (postservice) hurt his back at work. It is not in dispute that the Veteran has a neck disability. An October 1998 X-ray showed cervical spine spondylosis and disc space narrowing, and in October 2004, degenerative disc disease was diagnosed. However, the Veteran's STRs, including his service separation examination, contain no mention of a neck injury, or of complaints, treatment, or diagnosis of a neck disability. As was noted above, he was discharged from service for pre-existing low back disability. The only evidence indicating that the Veteran sustained a neck injury in service consists of his own account and statements from his son and current wife, who relate that the Veteran complained of neck pain attributed to an injury in service. The Board notes that neither the Veteran's son nor his current wife is shown to have any first-hand knowledge of events during his active service (he was then married to someone else). Their statements are clearly based on his accounts, their probative value depends on his credibility. While the Veteran's account of an injury in service incurred while unloading a truck of supplies is not inherently implausible, weighing all evidence bearing on the credibility of the account, the board finds it lacks credibility and consequently probative value. In essence, he asserts that he sustained a back injury in service and has had continuing problems with his neck ever since. The record provides no corroboration for that account, and what evidence there is in the matter contradicts his account. First, there is that the Veteran's STRs contain no mention of a neck injury, neck complaints or neck treatment. Significantly, the Veteran himself does not allege a neck injury in service, but instead reports a back injury in service with associated neck pain since. Further, the Veteran's ex-wife (to whom he was married during service) submitted a statement, indicating the Veteran complained of back pain and that because of his back, he wasn't able to stay in the military. She did not mention that he had neck complaints or problems in service. [She also noted that the Veteran had a postservice work injury, which may be a contributing/causal factor for some of his later back/neck complaints.] As this statement is by a person with direct knowledge of the Veteran when he was in service, it is more probative than the statements by the Veteran's current wife and son (whose knowledge of his complaints in service is based on his accounts). In addition, it is noteworthy that when the Veteran filed his initial claim for VA disability benefits (which was denied) in 1971, soon after his discharge from service, such claim was for a low back disability (spondylolysis) only. Logically, if he then had an ongoing neck problem from an injury in service, he would have included it in his claim. That he did not weighs against his more recent allegation of postservice continuity of cervical spine/neck symptoms. Finally, it is noteworthy that the initial clinical documentation of complaints of neck pain is in an August 1998 (more than 40 years after service) treatment record. The lengthy postservice interval before the initial clinical notation of neck complaints is of itself a factor for consideration against his claim. The Veteran filed a claim for service connection for his cervical spine in 2007, suggesting that his subsequent accounts of continuity are self-serving, which weighs against his credibility. See Pond v. West, 12 Vet. App. 341 (1991). Considering all the factors discussed above, the Board finds the Veteran's accounts of an injury in service, manifestations of a cervical spine/neck disability in service, and manifestations of neck symptoms continuously since service not credible, and therefore of no probative value. Where that leaves the Veteran's claim is that while he has satisfied the initial threshold requirement for establishing service connection (evidence of the disability claimed), he has failed to show a related injury or disease in service or a nexus of his current neck disability to such. The Board observes that without credible evidence of a related neck injury in service there cannot be probative evidence of a nexus between the current neck disability and service. Accordingly, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. Low Back Disability; New and Material Evidence A December 1971 rating decision denied the Veteran service connection for a low back disability based essentially on a finding that such disability preexisted service and was not aggravated therein. The Veteran initiated an appeal in the matter, but did not perfect the appeal by submitting a substantive appeal after a statement of the case (SOC) was issued. Additional evidence was not submitted within a year following. Accordingly, that decision is final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510. Evidence received since the December 1971 rating decision includes lay statements from the Veteran and his ex-wife indicating that the Veteran's low back disability did not preexist service. The Veteran stated that he did not know anything was wrong with his back until he had an accident while on active duty. He further stated that he played football in high school prior to joining the Air Force and had something been wrong with his back, he would not have been able to play. His ex-wife stated that she has known the Veteran since high school when he played football. She noted that players were required to get a physical each year they played. She did not recall the Veteran complaining of his back hurting prior to service. This evidence indicating that the Veteran's low back disability did not pre-exist service is presumed credible for purposes of reopening. It was not of record in 1971, and is new. As it addresses the questions of whether a low back disability preexisted service or was aggravated therein, it pertains to unestablished facts necessary to substantiate the claim of service connection for a low back disability, and raises a reasonable possibility of substantiating such claim. Consequently, particularly in light of the "low threshold" standard outlined by the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that the evidence is both new and material, and that the claim of service connection for a low back disability must be reopened. De novo consideration of the claim is addressed in the remand below. ORDER Service connection for a cervical spine disability is denied. The appeal seeking to reopen a claim of service connection for a low back disability is granted. REMAND As the decision above reopens the Veteran's claim of service connection for a low back disability, the analysis proceeds to de novo review of such claim. In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court held that where the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration unless there is a waiver from the Veteran or no prejudice would result from adjudication of the claim. As the RO has not considered the Veteran's reopened claim of service connection for a low back disability on the merits in the first instance, and he has not waived his right to such consideration, the Board finds that a remand for such purpose is necessary. Notably, the Veteran has not been afforded a VA examination in connection with this claim. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon the Court held that requirement (3), i.e., that a disability may be associated with service, is a "low threshold" requirement. The Veteran contends that he injured his low back in service, which resulted in an early discharge. His STRs show that on service entrance examination, his spine was normal on clinical evaluation. The STRs further show that in July 1971, a lumbar spine X-ray revealed bilateral spondylolysis/spondylolysthesis. A July 1971 record noted that the Veteran claimed constant low back pain for 2-3 years and that a prior X-ray had shown a congenital defect of the back. Bilateral spondylolysis of L5-S1 and a possible very mild spondylolisthesis were diagnosed. The examiner noted that the Veteran had a definite proven history of spondylolysis prior to entering service, and discharge was recommended. A September 1971 Medical Board recommended the Veteran be discharged "by reason of physical disability which existed prior to service and has not been aggravated thereby." Under 38 U.S.C.A. § 1111 (except for disability noted on service entrance) the Veteran is entitled to a presumption of soundness on entry in service (which can be rebutted only by clear and unmistakable evidence). A history of a preservice injury would, of itself, not suffice to rebut the presumption in the face of a normal clinical evaluation on service entrance. If the presumption of soundness is rebutted, the Veteran is entitled to a further presumption that the disability manifested in service was aggravated by service. This presumption, likewise, can be rebutted only by clear and unmistakable evidence of nonaggravation. The Veteran and his ex-wife (whom he married while in service) submitted statements that the Veteran's current low back problems did not pre-exist service. The ex-wife stated that she has known the Veteran since high-school, when he played high school football and was required to get annual physicals. She stated that she never heard him complain of his back hurting prior to service. As there is evidence of a current diagnosis of a back disability, evidence of a back disability during service, and evidence that the current disability may be associated with the symptoms in service, the Board finds that the low threshold standard of McLendon is met and an examination to secure a medical opinion in this matter is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his current low back disability. Based on a review of the record (and noting that the Veteran is entitled to a presumption of soundness on entry to active duty service with respect to a low back disability), the examiner should provide opinions that respond to the following: a) Please identify (by medical diagnosis) each of the Veteran's low back disabilities shown in the record. b) Is there any evidence in the record that renders it indisputable from a medical standpoint that a low back disability pre-existed service? If so, please identify such evidence. If not, please opine whether or not the Veteran's current low back disability is related to the low back disability manifested in service. c) If a low back disability manifested during service is found to have pre-existed service, please opine whether there is any evidence in the record that renders it indisputable from a medical standpoint that such disability was not aggravated during service, or that any increase was due to natural progression? The examiner must explain the rationale for all opinions given, citing to supporting factual data/clinical findings. 2. The RO should then review the record and readjudicate the Veteran's reopened claim of service connection for a low back disability. If it remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs