Citation Nr: 1751863 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-17 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left wrist disorder. 4. Entitlement to service connection for a neck disorder. 5. Entitlement to service connection for a low back disorder. 6. Entitlement to service connection for a left wrist disorder. 7. Entitlement to service connection for a right wrist disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1977 to March 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. FINDINGS OF FACT 1. In an unappealed September 1996 rating decision, the RO denied service connection for a neck disorder, a left wrist disorder, and a low back disorder; a March 2000 rating decision denied the Veteran's application to reopen the previously denied claims of entitlement to service connection for a left wrist disorder and a low back disorder. 2. The evidence received since the September 1996 rating decision as to the issue of entitlement to service connection for a neck disorder is relevant and probative of the issues at hand. 3. The evidence received since the March 2000 rating decision as to the issues of entitlement to service connection for a left wrist disorder and a low back disorder is relevant and probative of the issues at hand. 4. A neck disorder was not manifested during service or within one year of separation. A neck disorder is not attributable to service. 5. A low back disorder was not manifested during service or within one year of separation. A low back disorder is not attributable to service. 6. A left wrist disorder was not manifested during service or within one year of separation. A left wrist disorder is not attributable to service. 7. A right wrist disorder was not manifested during service or within one year of separation. A right wrist disorder is not attributable to service. CONCLUSIONS OF LAW 1. The September 1996 rating decision denying the claims for service connection of a neck disorder, a left wrist disorder, and a low back disorder, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). 2. The March 2000 rating decision denying the application to reopen claims for service connection of a left wrist disorder and a low back disorder, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). 3. New and material evidence has been received to reopen the claims of service connection for a neck disorder, a low back disorder, and a left wrist disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 4. A neck disorder was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 5. A low back disorder was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 6. A left wrist disorder was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 7. A right wrist disorder was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. These letters explained the evidence necessary to reopen a previously denied claim, as well as the evidence necessary to substantiate a claim for service connection. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded a VA examination responsive to the applications to reopen the previously denied claims for service connection and the claim for service connection for a right wrist disorder. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinion was conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria to Reopen Service Connection In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision makers. "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). The CAVC has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). The RO initially denied service connection of a neck disorder, low back disorder, and left wrist disorder in September 1996. The Veteran did not file a substantive appeal and the decision became final. See 38 U.S.C.A. § 7105(c). The September 1996 rating decision that denied the Veteran's claims for service connection of a neck disorder, low back disorder, and left wrist disorder on the basis that there was no record of complaints, treatment, or diagnoses related to the Veteran's left wrist, low back, or neck during service. The rating decision noted that post-service treatment records showed complaints of wrist pain and low back discomfort, and that an April 1996 x-rays showed arthritis of the left wrist and low back, and that the neck was normal. The rating decision also noted that the Veteran was treated at Kosterman Chiropractic in 1990 for cervical spine pain secondary to a motor vehicle accident and that the Veteran was treated by Dr. W in 1992 for a jammed left wrist, incurred while loading air freight. The Veteran filed an application to reopen the previously denied claims for service connection of a low back disorder and a left wrist disorder, which was denied in a March 2000 rating decision. The Veteran's application was denied on the basis that the new evidence submitted by the Veteran, namely post-service VA treatment records, was not material because the records did not show that the onset of the Veteran's left wrist disorder had onset during service or that there was a relationship between the Veteran's low back pain and left wrist disorder and the Veteran's service. The Veteran did not file a substantive appeal as to this rating decision. Therefore, the March 2000 denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Since the denial of the Veteran's claims in September 1996 and March 2000, the evidence submitted includes additional VA and private treatment records, VA examination reports, and statements submitted by the Veteran in support of his claims. VA and private treatment records show treatment for degenerative arthritis of the wrists, neck, and low back. Private treatment records, including a May 2012 statement from Dr. N of Primary Care Center of Monroeville states that the Veteran has cumulative trauma due to repetitive impact from precision parachute jumps during service, and that his musculoskeletal issues, including degenerative arthritis of the wrists, neck, and back, appear "to have been initiated" during service. The Veteran also submitted a letter from a fellow service member indicating that he witnessed the Veteran injure his wrist and noting that parachute jumping can cause injury to the spine. The evidence submitted subsequent to the September 1996 and March 2000 rating decisions as to the issues of service connection for a left wrist disorder, a neck disorder, and a low back disorder is new and material. The claims were previously denied on the basis that there was no evidence that the Veteran's left wrist disorder, neck disorder, and low back disorder were related to service. The added evidence speaks directly to elements which were not of record, mainly a possible relationship between the Veteran's left wrist disorder, neck disorder, and low back disorder and his service. This evidence cures an evidentiary defect. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Accordingly, the Board finds that the claims for service connection for a left wrist disorder, a neck disorder, and a low back disorder are reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's claims of entitlement to service connection for a neck disorder, a low back disorder, and right and left wrist disorders must be denied. In this case, there is no evidence of degenerative joint disease of the neck, low back, and/or right and left wrists during active duty. There is no indication that the Veteran sought any treatment for, or had any other complaints related to his neck, low back, or left wrist. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). The Veteran's medical history does not establish a manifestation of degenerative joint disease of the neck, low back, and/or right and left wrists within one year of separation and does not establish that any disability was manifest to a compensable degree within one year of separation. More specifically, according to available treatment records and the Veteran's own statements, the Veteran's cervical spine pain began in 1990, following a motor vehicle accident, and his left wrist pain began in 1992, following a work injury; he did not report a history of low back or right wrist pain until 1996. Moreover, the Veteran did not assert that his neck, low back, and right and left wrist symptomatology was related to his service until he filed his claims for service connection. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). In short, the evidence fails to establish the presence of pathology during service or within one year of separation. The Veteran is competent to report that he currently has been diagnosed with degenerative joint disease of the cervical and thoracolumbar spines, as well as of the right and left wrists, and such statements are confirmed by the record. In addition, he is competent to report when the disorders were first identified. However, his statements linking his disabilities to his service are not credible or competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of the evidence reflects that the Veteran's degenerative joint disease of the neck, low back, and wrists are unrelated to his service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). As noted by the Federal Circuit, the Department must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to. Waters v. Shinseki, 601 F.3d 1274 (2010). The Board notes that, in May 2012, the Veteran submitted an opinion from his treating physician, Dr. N of Primary Care Center of Monroeville. Dr. N noted the Veteran's history of precision parachute jumping in service and that the Veteran has cumulative trauma due to repetitive impact. Dr. N opined that the Veteran's musculoskeletal issues "appea[r] to have been initiated" during the Veteran's service. However, the letter from Dr. N lacks sufficient detail and his opinion is based solely on the Veteran's report of injury, diagnoses of record, and the Veteran's report of onset. Moreover, Dr. N does not address the intervening motor vehicle accidents or injuries in rendering his opinion. However, as previously discussed there is no evidence that the Veteran sustained any injuries to the neck, back, or wrists when parachuting in service. More significantly, the Veteran did not report any complaints related to parachute jumps other than his now service-connected left knee. There is also no evidence of any injuries, other than the aforementioned left knee injury, in service. The Board may not accept the medical opinions to the extent that they are not supported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Speculation does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board acknowledges the statement of E.H., who served with the Veteran on the precision parachute team; E.H. indicated that the Veteran injured his wrist during service, but did not seek treatment for it. E.H. also opined that jumping could cause an injury to the spine. However, the Board notes that E.H. did not indicate which wrist the Veteran allegedly injured, and did not indicate that the Veteran had an injury to his cervical or thoracolumbar spines in service, just that such an injury was possible. Even assuming the Veteran injured his left wrist in service, the Veteran did not have any left wrist complaints until he injured his left wrist at work, many years after service. As previously noted, VA and private treatment records reflect that the Veteran's left wrist injury is related to an on-the-job injury in 1992, while the Veteran worked as an air freight handler and that the Veteran's cervical spine pain began after a motor vehicle accident in 1990. Likewise, treatment records reflect that his right wrist and low back pain complaints began in 1996; VA treatment notes reflect that the Veteran worked as a skydiving instructor for many years following his service, and continued to jump for recreational purposes as well. As such, the Veteran's VA and private treatment records indicate that the Veteran's neck, low back, and right and left wrist complaints were associated with the intercurrent injuries many years following service. See 38 C.F.R. § 3.303(b) (subsequent, isolated manifestations of a chronic disorder are not service connected where they are clearly attributable to intercurrent causes). Moreover, the May 2017 VA examiner found that it was unlikely that the Veteran's neck, low back, and right and left wrist disorders were incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the Veteran's service treatment records were silent for complaints, findings or diagnosis of any neck, low back, or wrist disorders. The VA examiner acknowledged the statement by E.H., but pointed out that private treatment records from Dr. W show treatment for left wrist pain began after the Veteran jammed his wrist while loading freight in 1992, and that private treatment records from Kosterman Chiropractic show that the Veteran's neck complaints began after a motor vehicle accident in 1990. The VA examiner also noted that the Veteran reported doing over 2600 jumps while in the service, but that he continued to work as a skydiving instructor following service. In particular, the VA examiner pointed out that, at his March 1997 VA examination, the Veteran reported multiple minor injuries to the arms, legs, neck, and back related to his occupation as a professional skydiver. The Board finds that the probative value of the Veteran's general lay assertions are outweighed by the specific, reasoned opinion provided in the May 2017 VA examination report and the clinical evidence of record. The VA examiner is entitled to greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. The Board notes that the opinion of the VA examiner is also consistent with the medical evidence of record, which does not demonstrate that the Veteran's neck, low back, and right and left wrist disorders are related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In short, the most probative evidence of record fails to link the neck, low back, and right and left wrist disorders to service. For the foregoing reasons, the preponderance of the evidence is against the claims of service connection for a neck disorder, a low back disorder, and right and left wrist disorders. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER The application to reopen the claim for service connection of a neck disorder is granted. The application to reopen the claim for service connection of a low back disorder is granted. The application to reopen the claim for service connection of a left wrist disorder is granted. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a left wrist disorder is denied. Entitlement to service connection for a right wrist disorder is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs