Citation Nr: 1543474	
Decision Date: 10/09/15    Archive Date: 10/13/15

DOCKET NO.  12-15 516	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

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

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran




ATTORNEY FOR THE BOARD

M. Moore, Counsel


INTRODUCTION

The Veteran served on active duty from August 1980 to June 1992 with service in Southwest Asia.

These matters come 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 Nashville, Tennessee.  

In April 2015, the Veteran presented sworn testimony during a video conference hearing in Nashville, Tennessee, which was chaired by the undersigned.  A transcript of the hearing has been associated with the claims file.

The issues of service connection for neck and low back disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on her part is required.


FINDINGS OF FACT

1.  The RO denied service connection for C5-6, C6-7 radiculopathy in January 2001 on the basis that the evidence did not show an inservice cervical spine injury or a medical nexus between the Veteran's military service and her current cervical spine disability; the Veteran did not appeal this decision.

2.  Evidence submitted subsequent to the January 2001 rating decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disability.


CONCLUSIONS OF LAW

2.  The January 2001 rating decision denying service connection C5-6, C6-7 radiculopathy is final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.104(a), 20.1103 (2015).

3.  New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a cervical spine disability has been submitted.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2015); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the application to reopen the previously denied claim for service connection for the cervical spine is being granted, any error related to the duties to notify and assist is moot.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service connection for the cervical spine was initially denied in a January 2001 rating decision.  The RO determined that there was no evidence of an inservice neck injury or any evidence linking the Veteran's neck complaints to her military service.  The Veteran did not submit a notice of disagreement or new evidence within a year of this denial.  The January 2001 rating decision is the last final prior denial of the cervical spine claim.

Subsequent to the January 2001 rating decision, the Veteran testified at her April 2015 Board hearing that her VA orthopedist had told her that her cervical spine disability was related to her military service.  See Board hearing transcript, p. 6.  At this point, this statement must be presumed to be credible.  See Justus v. Principi, 3 Vet. App. 510 (1992).  This opinion satisfies the low threshold requirement for new and material evidence and the cervical spine claim is reopened.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  


ORDER

As new and material evidence sufficient to reopen the previously denied claim for service connection for a cervical spine disability has been received, the application to reopen is granted.


REMAND

With regard to the reopened cervical spine claim, the Veteran has not been afforded a VA examination or opinion.  She argues that this disability is the result of heavy lifting in service.  The Board's review of the service treatment records also shows complains of left neck pain in October 1983 and headaches starting in the neck in March 1992.  This claim must be remanded for a VA examination and opinion.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

With regard to the lumbar spine claim, the Veteran was afforded a VA examination in January 2011.  However, the examiner failed to address her complaints of continuous low back pain since service.  There are also findings of altered gait due to her service-connected bilateral knee disabilities in the record, raising the issue of secondary service connection.  She has not been afforded an opinion on any relationship between her knees and her low back.  This claim must also be remanded for a new VA examination and opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

As the case is being remanded, the Board will take the opportunity to obtain any outstanding VA or private treatment records.



Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file any updated VA treatment records.

2.  Send the Veteran a letter asking her to identify and provide a signed release of information (VA Form 21-4142) for any records relating to her neck or low back, particularly those identified at her April 2015 Board hearing (a local Clarksville Hospital).  If she returns a signed release of information, attempt to obtain and associate with the claims file any private treatment records.  All attempts to obtain these records should be documented in the claims file.  If the AOJ is unable to obtain any additional records, this must be noted in the claims file and the Veteran must be notified of such.  

3.  Schedule the Veteran for a VA examination to address the nature and etiology of her cervical and lumbar spine disabilities.  The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination.  This must be noted in the examination report.

The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed cervical spine and/or lumbar spine disabilities were caused by her active service, caused by a service connected disability, or aggravated by a service connected disability.  Consideration must be given to the Veteran's contention that her spine problems are the result of heavy lifting and physical labor that occurred in service.  The examiner should specifically address the service treatment records referencing low back and neck complaints in service, as well as the postservice findings of an altered gait.  The examiner also must address the Veteran's complaints of continuous neck and low back pain since service.

A rationale for all requested opinions shall be provided.  If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

4.  After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated.  If either of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and her representative.  After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review.

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

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These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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.  38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2015).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs