Citation Nr: 1335705 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-20 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for degenerative disc disease of the cervical spine. 2. Entitlement to service connection for degenerative disc disease of the cervical spine. 3. Entitlement to service connection for radiculopathy of the right upper extremity, claimed as a right shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to August 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2007 and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. FINDINGS OF FACT 1. A December 2003 RO decision denied entitlement to service connection for degenerative disc disease of the cervical spine; the Veteran did not appeal. 2. Evidence received since the December 2003 RO decision is new and material, and the Veteran's claim is reopened. 3. The Veteran's degenerative disc disease of the cervical spine is etiologically related to service. 4. The Veteran has radiculopathy of the right upper extremity secondary is etiologically related to service. CONCLUSIONS OF LAW 1. The December 2003 RO decision that denied entitlement to service connection for degenerative disc disease of the cervical spine is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been received since the December 2003 RO decision, and the Veteran's claim for entitlement to service connection for degenerative disc disease of the cervical spine is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for entitlement to service connection for degenerative disc disease of the cervical spine have been met. 38 U.S.C.A. §§ 101, 1101, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 4. The criteria for entitlement to service connection for radiculopathy of the right upper extremity, claimed as a right shoulder disability, have been met. 38 U.S.C.A. §§ 101, 1101, 1131 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence The Veteran's original claim for entitlement to service connection for degenerative disc disease of the cervical spine was denied in a December 2003 decision; the Veteran did not appeal. In March 2007, the Veteran filed a petition to reopen his claim of service connection for a cervical spine disability. The RO reopened the Veteran's claim, but denied entitlement to service connection in a June 2007 rating decision. The Veteran has appealed. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). However, 38 U.S.C.A. § 5108 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013). The Court has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The RO denied the appellant's prior claim based on an October 2003 VA medical opinion which concluded that the Veteran's cervical spine disability was not secondary to his service connected lumbar spine disability. The examiner did not address whether service connection was warranted on a direct basis. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's cervical spine disability had onset in service or is otherwise related to his active military service. The Veteran has submitted a letter from his primary care physician, Dr. A.L.R., who opined that the Veteran's degenerative disc disease of the cervical spine is "a primary disease related to his injuries in service." This evidence is new and material. Accordingly, the Veteran's prior claim is reopened. The issue of entitlement to service connection for degenerative disc disease of the cervical spine is addressed below. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Arthritis is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Service connection may be granted for any disease 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) (2013). 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 service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 ); 38 C.F.R. §§ 3.307, 3.309 (2013). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2013). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. The Veteran is seeking entitlement to service connection for degenerative disc disease of the cervical spine and a right shoulder disability. Based on the Veteran's description of his right shoulder disability as complaints of pain, numbness, and weakness in the right shoulder and arm as well as the medical evidence, the Board has re-characterized the Veteran's claim as one for radiculopathy of the right upper extremity. While the Veteran has in the past attempted to argue that his claimed disabilities are secondary to an already service connected lumbar spine disability, it appears that his primary allegation at this time is that they are related to an injury in service. The Veteran's service treatment records are negative for any specific complaints of or treatment for neck or cervical pain or injury, although the Veteran was seen for complaints of right shoulder pain of unclear etiology. However, the Veteran was treated frequently for complaints of low back pain. The Veteran's service treatment records are also significant for several injuries the Veteran sustained during his active military service. In February 1981, the Veteran injured his back after a heavy lift while repairing a tracked vehicle. In April 1984, a wall locker fell on the Veteran and the Veteran subsequently was dragged down a flight of stairs. The Veteran reported that his back hurt for three or four months following this incident. In 1985, he was noted to have upper back and shoulder complaints. In April 1987, he was noted to have episodic right shoulder pain. A June 1987 medical evaluation board reflects a history of right shoulder pain. A former colleague of the Veteran, A.M., submitted a statement in which he reported witnessing a wall locker fall on the Veteran and drag him down a flight of stairs, but indicated that he was unable to remember the extent of the Veteran's injuries. Post service, the Veteran was treated at a VA outpatient clinic in Puerto Rico for complaints of both upper and low back pain. On examination, the Veteran had tenderness and spasms of the neck and lumbar spine. He was diagnosed with chronic back sprain. A January 1988 VA examination report reflects that the Veteran complained of both upper and lower back pain with radiation of pain. In 2003, the Veteran began regularly receiving treatment from VA for cervical spine pain and complaints of pain and numbness in the right shoulder and upper extremity. An April 2003 MRI showed small central herniated disc at C2-3, C3-4, and C4-5 with no gross cord compression or bony canal or foramina stenosis. In September 2003, the Veteran was afforded a VA examination of his cervical spine. At that time, the Veteran reported a one year history of worsening neck pain, radiating into the shoulder. He did not report any specific injury. He was diagnosed with cervical myositis with reduced range of motion and probable degenerative arthritis. In an October 2003 addendum, the examiner explained that "it will be pure conjecture on my part to say that the lumbar spine causes cervical spine condition." However, the examiner only addressed whether service connection was warranted secondary to the Veteran's service connected lumbar spine disability and did not address entitlement to service connection on a direct basis. In September 2009, the Veteran's primary care physician, Dr. A.L.R. submitted a letter in support of the Veteran's claim. She diagnosed the Veteran with degenerative disc disease of the cervical spine and radiculopathy of the right shoulder and arm which she opined is "a primary disease related to his injuries during active duty." She concluded based on the Veteran's medical history and a review of his VA treatment records from 1987 to the present that the Veteran more likely that not hyper-extended his neck when he fell in 1984 after the wall locker fell on him and that his herniated discs were more likely than not that result of this injury. After a careful review of the record, the Board finds that there is evidence both for and against the Veteran's claims. On one hand, there is no evidence in the Veteran's service treatment records of any specific neck injury or complaints of neck pain. There are, however, numerous complaints of "upper back" and right shoulder problems during active duty. Additionally, post-service, after a single complaint of upper back pain in 1988, there is no documentation (in medical records) of further complaints of neck pain for approximately fifteen years. The Veteran contends, however, that he did have continuous neck and right shoulder pain after service; and the Board finds these contentions to be competent and credible. In a September 2009 letter, the Veteran's primary care physician noted that English is not the Veteran's first language and suggested that some of his complaints of neck pain may have been missed because the Veteran had difficulty communicating with his treatment providers. Dr. A.L.R. has also submitted a medical opinion in support of the Veteran's claims, opining that the Veteran's current cervical spine disability and right shoulder radiculopathy occurred as a result of in-service injuries. The Veteran's fall down a flight of stairs after a wall locker fell on him is documented in the Veteran's service treatment records and by an eyewitness to the event and is certainly the type of accident that could have resulted in serious injury, including hyperextension of the neck and herniated cervical disc. Having considered all the evidence, the Board finds that it is at least in equipoise and the benefit of the doubt is afforded the Veteran. Entitlement to service connection for degenerative disc disease of the cervical spine and for radiculopathy of the right upper extremity, claimed as a right shoulder disability, is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER New and material evidence having been received, the Veteran's previously denied claim for degenerative disc disease of the cervical spine is reopened. Service connection for degenerative disc disease of the cervical spine is granted. Service connection for radiculopathy of the right upper extremity, claimed as a right shoulder disability, is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs