Citation Nr: 1327541 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 12-17 616A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for a cervical spine disability and, if so, whether the reopened claim should be granted. 2. Entitlement to service connection for depression as secondary to service-connected thoracolumbar back strain with sciatica (back disability). 3. Entitlement to an increased rating for a back disability, higher than 40 percent. 4. Entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1991 to September 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A November 2008 Board decision denied the Veteran's request to reopen his previously denied claim for service connection for a cervical spine disorder. The Board's decision is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(b) (2012). In the July 2012 statement of the case, the RO explicitly considered the claim for service connection for a cervical spine disorder as reopened. The Board must, however, make an independent determination as to whether new and material evidence has been submitted. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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). The issues of entitlement to service connection for depression including as due to service-connected back disability, an increased rating for a back disability, and a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The November 2008 Board decision denied the Veteran's request to reopen his previously denied claim for service connection for a cervical spine disorder, reconsideration has not been ordered, and the decision was final when issued. 2. The evidence added to the record since the November 2008 Board decision that declined to reopen the claim for service connection for a cervical spine disorder raises a reasonable possibility of substantiating the claim. 3. A cervical spine disability, diagnosed as cervical spine strain, had its onset during active military service. CONCLUSIONS OF LAW 1. The November 2008 Board decision declining to reopen the previously denied claim of entitlement to service connection for a cervical spine disorder is final. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1103 (2012). 2. The evidence received since the November 2008 Board decision is new and material and the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2012). 3. The criteria for service connection for a cervical spine disability are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013), VA has certain obligations to notify and assist the appellant. Given that this decision reopens the claim of entitlement to service connection for a cervical spine disorder, and then grants the claim on the appeal, an exhaustive analysis of VA's attempt to comply with these statutes is not in order. II. New and Material Evidence The November 2008 Board decision denied the Veteran's request to reopen his previously denied claim for service connection for a cervical spine disorder, finding that there was no evidence that the claimed condition had its onset during his active military service. See e.g., 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The record reflects that, in a September 2002 rating decision, the RO denied the Veteran's claim for service connection for a spine disorder, finding no evidence of a currently diagnosed cervical spine disorder. The evidence considered by the RO at that time included the Veteran's service treatment records and written statements from him and E.D. Thereafter, in December 2003, the RO received the Veteran's request to reopen his previously denied claim. Additional evidence added to the record included VA medical records, dated from September 2003 through March 2004, private records from Objective Diagnostic and May and June 2003 VA examination reports. The evidence included a June 2000 Video Flouroscopy Report indicating that the Veteran had spondylolisthesis at C2-3. A November 25, 2002 VA treatment record diagnosed him with neck pain likely due to chronic muscle strain or spasm. This record indicates that a June 2002 magnetic resonance image (MRI) showed disc bulges at C5-6. The evidence also included an October 29, 2003 VA treatment record reflecting the Veteran's complaint of chronic neck pain that originated status post a motor vehicle accident in 1992 or 1993. In an April 2004 rating decision, the RO denied the Veteran's request to reopen his claim. In a June 2005 statement of the case, the RO reviewed the evidence de novo, and found no evidence that the Veteran's cervical spine disorder was incurred during his active service. The evidence of record at the time of the Board's November 2008 decision also included VA treatment records, dated from February 2003 to November 2007, a private functional capacity evaluation report dated in December 2006, records considered by the Social Security Administration (SSA), and the Veteran's written statements and oral testimony in October 2007. The evidence included a July 12, 2004 VA treatment record reflecting the Veteran's complaint of chronic neck pain that originated status/post a motor vehicle accident in 1992 or 1993 and June 2005 and May 2007 VA electromyography (EMG) records indicating that he complained of neck pain since his motor vehicle accident in 1992. Also of record at the time of the Board's November 2008 decision were June 2005 and April 2008 VA examination reports wherein the examiners did not find that the Veteran's diagnosed cervical spine strain had its onset in service. Unless reconsideration is ordered, Board decisions are final when issued. 38 C.F.R. §§ 20.302, 20.1103. A claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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. Id. The language of 38 C.F.R. § 3.156(a) creates a low threshold for reopening a previously denied claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). An application to reopen the claim was received in December 2008. The evidence added to the record since the November 2008 Board decision includes a November 2009 signed statement from D.F., M.D., the Veteran's treating VA internist. Dr. D.F. opined that the Veteran's cervical pain was secondary to his lumbar pain and more likely than not related to his motor vehicle accident during military service. In a March 2010 statement, Dr. D.F. indicated the Veteran's medical records demonstrated progressive worsening of neck and back pain and again opined that his condition was more likely than not related to military service and the traumatic military accident he sustained in 1993. According to Dr. D.F., the location of the Veteran's discomfort and his chronic pain issues were all related to this incident. Also added to the record was a June 2010 VA examination report. Wherein the examiner opined that the Veteran's neck strain was as likely as not caused by or a result of a whiplash injury during a motor vehicle accident in service as neck strain was a common injury due to whiplash. Overall, the written evidence added to the record since the last final denial describes an in-service injury and includes statements as to its onset and continuous symptomatology that tend to suggest that a current cervical spine disorder may be related to active service. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. III. Service Connection The Veteran maintains that he sustained a neck injury in a motor vehicle accident in service at which time he injured his low back. Service connection for a low back disability was granted by the RO in the September 2002 rating decision. During his October 2007 Board hearing, the Veteran testified that he sustained a whiplash injury in service but his low back problem "overwhelmed" the situation at the time and his neck disorder "got really bad" in approximately 1997. Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. To establish a right to compensation for a present disability, a veteran must show: "(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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). This is also a direct service connection theory of entitlement. In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The November 2009 statement from Dr. D.F., the Veteran's VA physician, indicates that the Veteran had degeneration in his cervical area shown on x-rays. The June 2010 VA examination report reveals that the Veteran was diagnosed as having cervical spine strain. Thus, a current cervical spine disorder is demonstrated. There is also evidence of the in-service motor vehicle accident and back injury and of a continuity of symptomatology linking that incident and injury to the current cervical spine disability. The Veteran reported on several occasions, including during the June 2010 VA examination, that he sustained a neck injury during his motor vehicle accident in service. It was noted by the examiner that the Veteran had more back problems at the time and, because his neck pain was mild, he did not mention it. Evidence in the Veteran's service treatment records reflects that, in March 1993, he was a restrained passenger in a motor vehicle accident. When evaluated at that time, he did not complain of neck pain. He had full range of motion of his back and there were no spasms and no tenderness. Subsequent clinical records reflect his complaints of back pain. There is no evidence of any complaints of or treatment for, neck symptoms in the service treatment records. His July 1994 separation examination report does not reflect a cervical spine abnormality and, he did not report a history of neck problems on a May 1994 Report of Medical history completed when he was examined for separation from service. He reported on his initial July 2002 Veteran's Application for Compensation or Pension (VA Form 21-526) that his cervical problems began in 1992; and, during his October 2007 Board hearing, stated that more severe neck problems began in approximately 1997. The Veteran is competent to report an in-service neck injury at the time of a motor vehicle accident. Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. As explained above, there is some evidence contradicting such reports. However, in light of the fact that service treatment records confirm such a motor vehicle accident, the fact that he reported an in-service back and neck injury after service, and resolving reasonable doubt in his favor, the Board concludes that his reports are also credible and an in-service neck injury is conceded. 38 U.S.C.A. § 5107(b). The Veteran filed a claim for service connection for a neck injury in July 2002. He repeated these reports during the June 2005 and April 2008 VA examinations. June 2005 and April 2007 VA EMG records also reflect his complaint of neck pain since the motor vehicle accident in 1992. In a May 2007 statement to the SSA, Dr. R.K.M. said that the Veteran was involved in a motor vehicle accident, sustained a neck injury and, since that time, had severe lumbar and cervical pain. VA treatment records, dated in October 2003 and July 2004, and the June 2010 VA examination report, indicate that the Veteran reported constant neck pain ever since the motor vehicle accident in service. The pain was "aching" in nature, with radiation of pain/numbness into his left arm, was treated with medication and physical therapy, and was associated with decreased cervical spinal motion and stiffness. See October 29, 2003 VA treatment record. In his November 2009 statement, Dr. D.F. opined that the Veteran's cervical pain was secondary to his lumbar pain and more likely than not related to his motor vehicle accident during military service. Then, in his March 2010 statement, Dr. D.F. noted that review of the Veteran's medical records demonstrated progressive worsening of the Veteran's neck and back pain and opined that the Veteran's condition was more likely than not related to his military service and the traumatic military accident he sustained in 1993. According to Dr. D.F., the location of the Veteran's discomfort and his chronic pain issues were all related to this incident. In June 2005, a VA examiner diagnosed the Veteran as having a cervical strain and noted that the neck condition did not develop until ten years after his motor vehicle accident. In the examiner's opinion, the Veteran's neck disorder was less likely than not related to his accident during military service. In April 2008, a VA examiner diagnosed a cervical strain but opined that his musculoskeletal cervical strain with pain was less likely than not related to his 1993 motor vehicle accident in service. The examiner stated that the Veteran's condition was not reported in the medical evidence until several years after the accident and objectively attributing it to the remote accident would be based on mere speculation. The April 2008 VA opinion is of no probative weight because it was based on a lack of medical evidence of treatment for neck problems in the Veteran's service treatment records or for many years after service. The examiner did not acknowledge or discuss the Veteran's reports of a continuity of neck symptoms since service. However, a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran is competent to report the symptoms of his cervical spine disorder, such as pain, as well as a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Although there is no contemporaneous medical evidence of cervical spine symptoms in the years immediately following service, there is no affirmative evidence to contradict his reports and they are otherwise generally consistent with the evidence of record. The Board therefore finds that his reports are credible. Moreover, while Dr. D.F., the Veteran's treating VA internist, and the June 2010 VA examiner, found the Veteran's account of his cervical pain consistent with the record, the June 2005 VA examiner did not. Dr. D.F. opined that the Veteran's cervical pain was secondary to his lumbar pain and more likely than not related to his motor vehicle accident during military service. The June 2010 VA examiner concluded that the Veteran's neck strain was as least as likely as not caused by or a result of his whiplash injury during a motor vehicle accident in service as neck strain was a common injury due to whiplash. As the weight of the evidence reflects that the Veteran injured his cervical spine in service, has a current cervical spine disorder, and there has been a continuity of symptomatology since service, with no post-service neck injury, and resolving reasonable doubt in favor of the Veteran, the criteria for service connection for the current cervical spine disorder, diagnosed as cervical strain, are met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303. ORDER New and material evidence having been received, the claim of entitlement to service connection for a cervical spine disability is reopened. Service connection for a cervical spine disability is granted. REMAND In his August 2012 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge during a hearing conducted at the RO ("Board hearing"). In a November 2012 letter, the RO advised the Veteran that his name was placed on the list of persons wishing to appear before the Board. There is no indication in the record that the Veteran withdrew his hearing request in writing. The Veteran has a right to the hearing. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.700 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Schedule the Veteran for a hearing before a Veterans Law Judge at the RO. 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). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs