Citation Nr: 1535659 Decision Date: 08/20/15 Archive Date: 08/31/15 DOCKET NO. 12-02 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from October 1981 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified at a hearing in May 2015 before the undersigned. A copy of the transcript has been associated with the electronic claims file. The record was held open for an additional 60 days so the Veteran could submit additional evidence. In June 2015, he submitted private medical records and waived his right to have it initially considered by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 20.800, 20.1304(c) (2015). The issue of entitlement to service connection for a cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of AOJ. FINDING OF FACT Evidence associated with the claims file since January 2009 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disability. CONCLUSION OF LAW Evidence received since the January 2009 rating decision that denied service connection for a cervical spine disability, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION In March 2006, the AOJ denied the Veteran's claim for service connection for a cervical spine disability on the basis that there was no documentation of a neck problem in service. He did not submit a Notice of Disagreement (NOD) or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that if new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim"); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (holding that "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim"). Accordingly, the March 2006 rating decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2015). In June 2007, the Veteran filed a petition to reopen his previously denied claim for service connection for a cervical spine disability. On March 3, 2008, he again stated that he wished to reopen his claim. On March 13, 2008, the AOJ issued a rating decision confirming and continuing the denial of service connection for a cervical spine disability on its merits. However, in January 2009, the AOJ issued a second rating decision and denied the Veteran's claim because new and material evidence had not been submitted. He did not submit an NOD within one year of the promulgation of either the March 2008 or January 2009 rating decisions. He did not submit new and material evidence within one year of the March 2008 rating decision. Accordingly, the March 2008 rating decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2015). However, in November 2009, within one year of the January 2009 rating decision, the Veteran submitted additional evidence and asserted a new theory of entitlement. The facts in this case therefore raise the issue of whether the provisions of 38 C.F.R. § 3.156(b) apply. Under this regulation, new and material evidence received prior to the expiration of the appellate period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal. See Buie, 24 Vet. App. at 251-52. If new and material evidence is received during an applicable appellate period following a rating decision, it will be considered in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b) (2015); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). In such situations, a rating decision does not become final. Buie, 24 Vet. App. at 251-52. Thus, under 38 C.F.R. § 3.156(b) , "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond, 659 F.3d at 1367-68. "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young, 22 Vet. App. at 468. When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Id. at 466. In November 2009, the Veteran submitted duplicate service treatment records (STRs) that had been of record at the time of the initial March 2006 denial. This evidence is not new. However, he also raised the theory of secondary service connection by asserting that his neck disability was the result of his service-connected lipoma removal, left cheek scar, right shoulder disability, and low back disability. In Boggs v. Peake, it was determined that although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C.A. § 7104(b) (West 2014)]," any evidence supporting the veteran's new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C.A. § 5108. 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, no evidence was submitted in support of the newly raised theory of secondary service connection claim. Therefore, new and material evidence was not submitted within one year of the January 2009 rating decision and the provisions of 38 C.F.R. § 3.156(b) do not apply. The January 2009 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2015). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C.A. § 7104(b) (West 2014); King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C.A. § 5108 (West 2014). New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2015). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488(1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In June 2015, the Veteran's representative submitted a statement from Dr. E. L., a private physician. Dr. E. L. stated that the Veteran's cervicalgia and degenerative joint disease of the cervical spine "...may be related to service." This is the first medical opinion of record that provides an indication that the Veteran's cervical spine disability may be related to service. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. New evidence raises a reasonable possibility of substantiating the claim if when considered with the evidence already of record, it would trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the first and second elements set forth in McLendon were met prior to the January 2009 final denial. Dr. E. L.'s opinion meets the low threshold set forth in McLendon for what constitutes an indication that the claimed disability may be related to service. However, a speculative opinion such as Dr. E. L.'s is not probative evidence. An examination is needed. Reopening of the Veteran's claim for service connection for a cervical spine disability based on the receipt of new and material evidence is therefore warranted. Id. at 121. Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 would not avail the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014). ORDER New and material evidence having been received, the claim for service connection for a cervical spine disability is reopened; the appeal is granted to this extent only. REMAND The Veteran underwent VA examinations in October 2012 and August 2013. The October 2012 VA examination was inadequate because the examiner provided a negative opinion with regard to direct service connection and did not provide a rationale. Additionally, the examiner provided an opinion with regard to the causation prong of a secondary service connection claim, but not the aggravation prong. 38 C.F.R. § 3.310 (2015). The August 2013 VA examination was inadequate because the examiner provided a negative opinion with regard to the causation prong of a secondary service connection claim without a rationale and did not address the aggravation prong. Id. Once VA provides a veteran with a VA examination, it has a duty to provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is necessary so that the Veteran may be afforded a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his cervical spine disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. An October 1995 STR noting removal of stitches following the Veteran's injury where he was hit in the face with a door. ii. A September 1999 STR noting surgical removal of a neck lipoma. iii. A September 2005 VA treatment record where the Veteran reported having neck pain since the 1990s when he had a lifting injury in the military. iv. March 2007 and May 2007 VA treatment records where the Veteran reported neck pain since at least the 1990s. v. A June 2007 VA treatment record noting back pain after a motor vehicle accident earlier that month. vi. A November 2007 VA treatment record where the Veteran reported neck pain after lifting a five gallon water bottle. vii. June and July 2012 statements from H. C., J. C., and R. V. describing the Veteran's in-service injury and complaints. viii. The report of the Veteran's October 2012 VA examination. ix. The report of the Veteran's August 2013 VA examination. x. The transcript of the Veteran's May 2015 hearing. c. In providing the requested opinion, the examiner must address the Veteran's lay assertions. The Veteran's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. d. The examiner must provide opinions with regard to the following: i. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability began during active service; or, is related to any incident of service; or, if arthritis is diagnosed, began within one year after discharge from active service. ii. If the examiner concludes that the cervical spine disability is not related directly to service, determine whether it is at least as likely as not that it was proximately due to or the result of his service-connected residuals of a lipoma on the back of the neck, right shoulder disability, lumbar spine disability, left cheek scar, and/or left forehead scar. iii. If the examiner concludes that the cervical spine disability is not proximately due to or the result of a service-connected disability, determine whether it is at least as likely as not that it was aggravated beyond its natural progression by his service-connected residuals of a lipoma on the back of the neck, right shoulder disability, lumbar spine disability, left cheek scar, and/or left forehead scar. e. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs