Citation Nr: 1331397	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-08 164	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim of service connection for a cervical spine disability.  

2.  Entitlement to service connection for a cervical spine disability.

3.  Entitlement to a disability rating higher than 20 percent for left knee tendonitis with degenerative changes.

4.  Entitlement to an initial disability rating higher than 10 percent for left knee laxity.
REPRESENTATION

Veteran represented by:	Elke E. Altman

WITNESS AT HEARING ON APPEAL

The Veteran 
ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from August 1987 to June 1992.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in May 2008 and in December 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). 

In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

The reopened claim of service connection for a cervical spine disability and the claims for increase for the left knee are REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In a rating decision in December 2004, the RO denied the claim of service connection for a cervical spine disability; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran.

2.  The additional evidence presented since the rating decision by the RO in December 2004 relates to an unestablished fact necessary to substantiate the claim of service connection for a cervical spine disability.  





CONCLUSION OF LAW

The criteria for reopening the previously denied claim of service connection for a cervical spine disability have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

In light of the grant of the application to reopen the previously denied claim of service connection, further discussion here of VCAA compliance is not necessary.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Legal Criteria for New and Material Evidence Claim

The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim.  38 U.S.C.A. § 5108.

Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).





As the Veteran's current claim to reopen was received in November 2007, after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies.

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).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.  King v. Brown, 5 Vet. App. 19, 21 (1993).

In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Procedural History and Evidence Previously Considered

In a rating decision in December 2004, the RO denied the claim of service connection for a cervical spine disability, because a cervical disability was not shown in service and the post-service cervical spine disability was unrelated to service.  





After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. 

The evidence of record at the time of the rating decision in December 2004 consisted of the service treatment records, VA records, and the Veteran's statements. 

The service treatment records contained no complaint, finding, history, symptom, treatment, or diagnosis of a cervical spine abnormality or injury or disease. 

After service, VA records show that in October 2003 the Veteran complained of neck pain for which he had received physical therapy.  The pertinent findings were crepitus with flexion and limited rotation of the cervical spine.  In February 2004, it was noted that the Veteran had had neck pain for five years. 

In June 2004, the Veteran stated that his cervical problems began in service in January 1992. 

Current Claim to Reopen 

In November 2007, the Veteran sought to reopen the claim for service connection for a cervical spine disability.  

Additional Evidence and Analysis

The additional evidence presented since the rating decision in December 2004 consists of VA records, the Veteran's statements and testimony, and medical articles.  




VA records show that in August 2009 the Veteran complained of neck pain.  X-rays of the cervical spine were read as essentially normal. 

In a rating decision in December 2009 the RO granted service connection for a left shoulder disability. 

In a statement in March 2013 and in testimony in March 2013, the Veteran stated that the cervical spine disability is secondary to the service-connected left shoulder disability.  

The Veteran has also submitted medical articles that link shoulder pain to neck pain.  

As the additional evidence relates to an unestablished fact necessary to substantiate the claim on an applicable theory of service, namely, secondary service connection the evidence is new and material.  

ORDER

As new and material evidence has been submitted, the claim of service connection for a cervical spine disability is reopened, and to this extent only the appeal is granted.

REMAND

Although the Board has reopened the claim of service connection, as the evidence is insufficient to decide the claim on the merits further development is needed. 

On the claims for increase for the left knee, in March 2013, the Veteran described symptoms more severe that shown on the most recent VA examination and he stated that the knee disability is worse.  As the record suggests a material change in the disability a reexamination under 38 C.F.R. § 3.327 is warranted. 



Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination to determine: 

a). Whether the Veteran currently has a disability of the cervical spine, and, if so,  

b).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the current disability of the cervical spine is caused by or aggravated by the service-connected left shoulder disability? 

In this context, the term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of the disability of the cervical spine as a result of the service-connected disability beyond the natural clinical course of the disability as contrasted to a temporary worsening of symptoms. 

The Veteran's file must be made available to the VA examiner for review.  

2.  Afford the Veteran a VA examination to determine the severity of the left knee disability. 

The VA examiner is asked to describe: 



a).  Flexion and extension in degrees and any additional limitation of flexion or extension, considering functional loss due to pain, weakness, fatigability, painful motion, including during flare- ups or with repetitive use, if feasible, in terms of degrees of additional limitation of flexion or extension; 

b).  Any ligament instability; 

c).  Any other symptoms, such as locking or effusion, not encompassed by limitation of flexion or extension or functional loss due to pain or instability. 

The Veteran's file must be made available to the VA examiner.  

3.  After the above development adjudicate the claims.  If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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).


______________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs