Citation Nr: 1338016 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-47 707 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for a degenerative disc disease (DDD), cervical spine, to include as secondary to a service-connected chronic lumbosacral strain disorder. 2. Entitlement to service connection for a DDD, cervical spine, to include as secondary to a service-connected chronic lumbosacral strain disorder. 3. Entitlement to service connection for a DDD, lumbosacral spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1976. He also had subsequent service with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and May 2010 rating decisions of the RO. The Veteran was initially represented by Disabled American Veterans, but ultimately changed representation to Paralyzed Veterans of America, Inc. in February 2008. The appropriate VA forms are associated with the claims file and the Board acknowledges this change. As will be discussed, the Veteran initiated an appeal of the October 2009 rating decision by submitting a Notice of Disagreement in April 2010. The RO issued another rating decision in May 2010 that denied the Veteran's claim of service connection for a DDD of the lumbosacral spine. In November 2010, the Veteran submitted a VA Form 9 (for his appeal of the October 2009 decision) that stated that he believed that the DDD of his back and neck began when he hurt his back in service. Such a statement may be construed as a Notice of Disagreement as to the May 2010 rating decision denying service connection for DDD of the lumbosacral spine. However, a fully responsive Statement of the Case has not been issued, and the Board is required to remand, rather than refer, this matter. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of service connection for a DDD of the lumbosacral spine is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The claim of service connection for DDD, cervical spine was previously denied by the RO in a November 2002 rating decision; the Veteran was informed of the decision and apprised of his appellate rights, but he did not appeal from that decision in a timely manner. 2. The evidence received since the November 2002 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a DDD of the cervical spine. 3. The currently demonstrated DDD of the cervical spine is shown as likely as not to be due to a significant spinal injury sustained during the Veteran's period of active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a DDD of the cervical spine. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. By extending the benefit of the doubt to the Veteran, the disability manifested DDD of the cervical spine is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As the Board's decision to reopen and grant service connection for a DDD, cervical spine disorder herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disorder which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured 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) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran asserts that his DDD of the cervical spine began as a result of an in service injury. A review of the Veteran's service treatment records showed that the Veteran was treated for bruised muscles in August 1975 when he was thrown after a 2.5 ton tire he was sitting on "blew up." The Veteran also reported having sacrum pain since the incident at time of his September 1976 separation examination. As a result of this in service injury, the RO granted service connection for chronic lumbosacral strain in April 1982. In July 1990, the Veteran submitted an application for an increase rating evaluation for his lumbosacral strain. In this claim, he reported having constant pain and possibility that there was arthritis in his spine as a result of his in service injury. The Veteran then filed a claim of service connection for a cervical spine disorder in June 1998. In November 2002, the RO issued a rating decision which denied claim due to a lack of evidence showing that the Veteran's DDD of the cervical spine was related to the service-connected lumbosacral strain or that it was manifested during service. The Veteran was notified of the decision and of his appellate rights, but he did not appeal. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Moreover, there was no evidence submitted within one year of the rating decision. 38 C.F.R. § 3.156(b). In July 2009, the Veteran filed an application to reopen the claim of service connection for degenerative arthritis of the cervical spine. This claim was denied in October 2009 because the RO determined that the Veteran had not submitted new and material evidence. The RO then received additional medical records and subsequently obtained a VA examination. It denied the claim again in a May 2010 rating decision because although the evidence submitted was new, it did not bear directly and substantially upon the issue. A review of the claims file shows that the Veteran had submitted a medical record, dated June 2009, from his VA Chiropractor regarding his DDD, cervical spine, attached to his July 2009 petition to reopen. In particular, that medical record contained a medical opinion that the Veteran's service-connected injuries were most likely the cause of the mechanical breakdown of the Veteran's entire spine and that that breakdown had caused the current cervical spine disorder. It appears that this evidence was not considered at the time of the October 2009 or May 2010 rating decision, as the RO stated that the records submitted by the Veteran had not addressed the etiology of his cervical spine disorder. As previously noted, the RO denied the prior claim because the evidence did not establish a nexus between the DDD of the cervical spine and his injuries in service. Therefore, the Board finds that new and material evidence has been received in order to reopen the claim of service connection for a DDD, cervical spine disorder. The Board now reviews whether service connection is warranted for this claim. As noted, a review of the Veteran's service treatment records show that the Veteran sustained a back injury during service. He is service connected for chronic lumbosacral strain. The Board also finds that the Veteran's VA medical records show that the Veteran has a current diagnosis of DDD of the cervical spine. The remaining question is whether the current DDD of the cervical spine is related to an event or incident of his active service. There are four medical opinions of record with regard to the etiology of the Veteran's DDD of the cervical spine: the opinion of the Veteran's VA chiropractor; a VA examination report and opinion dated in November 2002; a VA examination report dated in March 2010; and a VA examination report dated in October 2010. The Veteran was first afforded a VA examination in November 2002. That examiner diagnosed the Veteran with DDD, but did not provide an opinion as to its etiology. Later in November 2002, the RO obtained an addendum opinion wherein the examiner stated that the DDD was not related to the service-connected lumbosacral strain, but provided no rationale for this opinion. The Veteran was seen on numerous occasions as his treating chiropractor. In June 2009, he interviewed and evaluated the Veteran in order to provide an opinion and supporting rationale regarding the claimed DDD. He noted that lumbar DDD or degenerative joint disease could be related to cervical degenerative changes. He then opined that the type of spondylosis that the Veteran had was the result of mechanical breakdown and typically resulting from a history of injury or trauma. He also opined that the service injuries were most likely the source of the mechanical breakdown in the Veteran's spine. He also made note of the Veteran's full time manual labor employment at that appointment, as such the Board finds that he was aware of the nature of the Veteran's civilian employment when he provided his opinions. The Veteran was then afforded a VA examination in connection with this claim in March 2010. The examiner opined that the Veteran's DDD of the lumbar spine was most likely caused by aging. No rationale was provided. The Veteran was afforded another VA examination in October 2010. At that examination, the examiner opined that the Veteran's DDD of the cervical spine was not likely due to his service connected lumbar strain. No rationale was provided. He also opined that he was unable to determine if it was as likely as not that the DDD of the cervical spine was due to the Veteran's post-service work as a maintenance worker or as a result of his 1996 spine injury related to his civilian employment. After reviewing the entire record, the Board finds the evidence to be in relative equipoise in show that the DDD of the cervical spine as likely as not was due to the significant injury that the Veteran sustained to his spine while on active duty. In resolving all reasonable doubt in the Veteran's favor, service connection for his DDD of the cervical spine is warranted. ORDER New and material evidence has been submitted to reopen the claim of service connection for DDD of the cervical spine, the appeal to this extent is allowed. Service connection for DDD of the cervical spine is granted. REMAND In May 2010 the RO issued a rating decision that denied the Veteran's claim for a DDD of the lumbosacral spine. In November 2010, the Veteran submitted a VA Form 9, which stated that he believed that the DDD of his back and neck began when he hurt his back in service. The Board finds that this statement can be construed as a Notice of Disagreement with the May 2010 rating decision pertaining to the DDD of the lumbosacral spine. However, a Statement of the Case (SOC) has not been issued. Under these circumstances, a remand is necessary for the issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, this remaining matter is REMANDED for the following action: The RO should take appropriate steps to issue and furnish to the Veteran a Statement of the Case that addresses the claim of service connection for degenerative disc disease of the lumbosacral spine. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely Substantive Appeal in response thereto. The RO should advise the Veteran that the matter will be returned to the Board for appellate consideration only if he perfects a timely appeal. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs