Citation Nr: 1338659	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-20 483	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for right leg disorder, including as secondary to cervical spine degenerative disc disease.

3.  Entitlement to service connection for left leg disorder, including as secondary to cervical spine degenerative disc disease.

4.  Entitlement to service connection for shoulder disability, including as secondary to cervical spine degenerative disc disease.

5.  Whether new and material evidence has been submitted to reopen a claim for service connection degenerative disc disease of the cervical spine.

6.  Entitlement to an increased evaluation for residuals of removal of cyst of right wrist, including scar, currently assigned a 10 percent evaluation.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Tahirih S. Samadani, Counsel


INTRODUCTION

The Veteran served on active duty from November 1962 to November 1964.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction was subsequently returned to the RO in Cleveland, Ohio.  

Regarding the cervical spine claim, the Board has a legal duty to address the "new and material evidence" requirement of 38 C.F.R. § 3.156 regardless of the actions of the RO.  Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).  The Board will therefore preliminarily consider the claim under the provisions of 38 C.F.R. 
§ 3.156, concerning the receipt of new and material evidence to reopen a claim.

The issues of entitlement to service connection for bilateral hearing loss, entitlement to service connection for right leg disorder, including as secondary to cervical spine degenerative disc disease, entitlement to service connection for left leg disorder, including as secondary to cervical spine degenerative disc disease, entitlement to service connection for shoulder disability, including as secondary to cervical spine degenerative disc disease, entitlement to service connection degenerative disc disease of the cervical spine on the merits, and entitlement to an increased evaluation for residuals of removal of cyst of right wrist, including scar, currently assigned a 10 percent evaluation 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 Veteran's claim of service connection for degenerative disc disease of the cervical spine was last denied in an April 2004 Board decision.  The Veteran did not appeal.

2.  The evidence received since the April 2004 Board decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim of service connection for degenerative disc disease of the cervical spine.


CONCLUSIONS OF LAW

1.  The April 2004 Board decision is final.  38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2004).

2.  New and material evidence has been received to reopen the claim of service connection for degenerative disc disease of the cervical spine.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminarily, the Board notes that the issue of entitlement to service connection for a cervical spine disability is reopened below, and it, along with the other issues on appeal, is subject to additional development on remand.  Accordingly, the Board will not further address the extent to which VA has fulfilled its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013), as further action is being requested in this case.   
 
I.  Relevant law and regulations 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

Board decisions are final when issued, unless reconsideration has been ordered, or are appealed to the Court of Appeals for Veterans Claims (CAVC).  38 C.F.R. 
§ 20.1100(a).  Once a decision becomes final, new and material evidence is required to reopen the claim which was denied.  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."

New evidence means evidence not previously submitted.  Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) .

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, 1363   (Fed. Cir. 1998).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court, interpreted the language of 38 C.F.R. § 3.156(a)  as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA." 

II.  Analysis 

In April 2004, the Veteran's claim for service connection for degenerative disc disease of the cervical spine was denied by the Board.  Notice of this decision was mailed in June 2004.  Board decisions are final when issued, unless reconsideration has been ordered.  38 C.F.R. § 20.1100(a) (2013).  The Veteran did not appeal this decision or ask for reconsideration.  The Board decision became final.  38 U.S.C.A. § 5108. 

In essence, the Board denied the Veteran's claim because there was no current disability related to the Veteran's military service.  The Board relied on Espiritu v. Derwinski, 2 Vet. App. 492 (1992), and explained that the Veteran's statements as to the existence of current disability associated with neck injury in service are of little or no weight because he is a lay person.  Since the time of the Board decision, case law now notes that the Veteran's statements can be considered competent evidence going toward a nexus between service and the current disability.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The credibility of newly submitted evidence, although not its weight, is presumed for the narrow purpose of determining whether sufficient evidence has been submitted to reopen the previously disallowed claims for service connection.  See Justus, supra.  Therefore, presuming their credibility, the Veteran's current statements that his neck disability began in service and that he has had neck pain since service constitute new and material evidence.  

In addition, it appears that the Board not only denied the Veteran's claim to reopen because there was no link between the Veteran's military service and his current disability, but it also did not reopen the Veteran's claim because there was no evidence of current disability.  Since that time, several medical records have been submitted that now show that the Veteran has a current diagnosis of degenerative disc disease of the cervical spine.  Therefore, treatment records demonstrating the current diagnosis also constitute new and material.  

Although there is new and material evidence of record sufficient to reopen the previously denied claim, this does not mean that the claim must be allowed based on such evidence.  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. That is the case here.  The claim is reopened; however, for reasons which will be expressed below, the Board finds that additional development is required before the claim may be adjudicated on the merits. 


ORDER

As new and material evidence has been received to reopen the claim of service connection for degenerative disc disease of the cervical spine, the appeal to this extent is granted.


REMAND

For the reasons that follow, the Board finds that the Veteran's claims must be remanded for further evidentiary development. 

Social Security Administration Records

The claims file indicates that the Veteran has been receiving benefits from the Social Security Administration.  There is no indication that any attempt has been made to obtain these records.  A December 1988 VA psychiatric treatment record notes that the Veteran was receiving benefits for SSA for a right hand injury.  First, it is unclear whether the Veteran's right hand injury is referring to the Veteran's right wrist disability.  Second, it is unclear whether he was receiving SSA benefits for other disabilities as well.  The Veteran may have been receiving SSA benefits prior to 1988 so the SSA records and associated medical records may have been destroyed.  However, an attempt to obtain these records, or confirm that the records have been destroyed, must be made.  

Supplemental Statement of the Case (SSOC)

The RO issued a statement of the case in April 2010 for the issues on appeal.  Since that time, VA treatment records have been associated with the claims file which include treatment for the cervical spine, leg stiffness, shoulder pain and hearing loss.  These treatment records have not been reviewed by the RO and a supplemental statement of the case has not been issued.  If the issues are not granted on remand, an SSOC should be issued which includes a review of all newly obtained evidence.  

Cervical Spine

In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c).  The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event.  The claims file shows that the Veteran has a current diagnosis of cervical spine degenerative disc disease.  Service treatment records show treatment for his cervical spine.  The Veteran has reported numerous times that his cervical spine disability began during service.  Therefore, the Board finds that the evidence of record triggers VA's duty to provide an examination and obtain an opinion.  See 38 C.F.R. § 3.159(c).



Shoulder and Bilateral Leg Pain

The VA treatment records appear to associate the Veteran's shoulder pain and bilateral leg pain to his cervical spine disability.  A January 2009 VA treatment records notes that the Veteran reported neck pain that radiated to his shoulders.  This same treatment record noted that the Veteran had cervical myelopathy that was causing him to slowly lose his ability to walk.  Therefore, while on remand for examination and opinion regarding the cervical spine disability, the Board finds that any relationship between his current shoulder and leg complaints should also be explored.

Right wrist disability

The Veteran last underwent an examination for his wrist disability in December 2008.  Although the mere passage of time does not render an examination inadequate, the Veteran has since presented with increased symptomatology.  Particularly, in a January 2011 VA treatment record, he presented with complaints of chronic pain and tingling of the right wrist.  Therefore, the Board finds that he should be afforded a VA examination to address the current severity of the disability.  

During the December 2008 examination, the examiner was unable to assess the range of motion of the right wrist due to the Veteran report of severe pain.  Furthermore, the Veteran pushed the examiner away when she attempted to perform passive range of motion.  The Board reminds the Veteran that the duty to assist is not a one-way street, and that he has a duty to cooperate, to include reporting for examination.  38 C.F.R. §§ 3.326, 3.327, 3.655 (b) (2013); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  He is advised that he has an obligation to assist VA in the development of his claim, and that failure to do so may result in an adverse decision.



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Accordingly, the case is REMANDED for the following action:

1. Issue to the Veteran appropriate notice regarding the evidence and information necessary to support a claim of entitlement to service connection on a secondary basis for his shoulder and leg disability claims.

2.  Obtain VA treatment records since September 2012 and associate them with the claims file.

3.  Contact the Social Security Administration (SSA) and request a copy of the Veteran's complete SSA disability benefits file, including any administrative decision(s) on the Veteran's application for SSA disability benefits and all of the underlying medical records.  A copy of any response(s) from SSA, to include a negative reply, should be included in the claims file.  All records provided by SSA also should be included in the claims file.

4.  After the above development has been conducted, to the extent possible, schedule the Veteran for a VA examination to determine the etiology of his degenerative disc disease of the cervical spine.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran.  

All indicated studies should be performed, and their results reported.  Orthopedic and neurologic manifestations involving the spine and upper and lower extremities must be reported in full.

Following review of the claims file and examination of the Veteran, the examiner is asked to provide opinions s to the following:

a.  whether it is at least as likely as not (i.e., probability of 50 percent or more) that his current degenerative disc disease of the cervical spine began in service or is related to any disease or injury in service.  

The examiner should specifically comment on the tabbed service treatment records that show treatment for the cervical spine during service. 

The examiner is advised that the Veteran is competent to report injuries and symptoms in service, regardless of the contents of the service treatment records, and that the Veteran's reports must be considered.  

b.  If the cervical spine disability is found to be related to service, whether it is at least as likely as not (i.e., probability of 50 percent or more) that his current shoulder disability is caused, or aggravated, by his cervical spine disability.  

c.  If the cervical spine disability is found to be related to service, whether it is at least as likely as not (i.e., probability of 50 percent or more) that his current bilateral leg disability is caused, or aggravated, by his cervical spine disability.  

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.  "Aggravation" means that the disability has permanently worsened beyond the natural progression of the disability due to the service-connected disability.

The rationale for any opinions should also be provided.  If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  

5.  After the above development has been conducted, to the extent possible, schedule the Veteran for a VA examination to evaluated the current severity of this right wrist disability, including a scar.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran.  All indicated studies should be performed, and their results reported.  

The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected right wrist disability.  The examiner is asked to comment on the neurological symptoms the Veteran has indicated, and determine whether they are due to the service-connected wrist disability.

A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate.

6.  Send notice of the dates of the examinations to the Veteran at his current address of record, as well as to his representative, far enough in advance to allow the Veteran an opportunity to respond to the notice if he so chooses.  This notification must include notice of the potential ramifications of a failure to report for VA examination under 38 C.F.R. § 3.655.  The Board reminds the Veteran that he has a duty to cooperate during the examination.  

7. Then, readjudicate the claims.  In particular, review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC).  In the event that the claims are not resolved to the satisfaction of the Veteran, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision.  After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).


______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs