Citation Nr: 1753313 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-00 203 ) 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 previously denied claim of entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for headaches. 4. Entitlement to service for Behcet's disease. REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As background, in February 2003 the Veteran filed a claim for service connection for cervical disc disease. In an April 2003 rating decision, the RO denied service connection for the claim. The Veteran did not appeal the rating decision. Then, in December 2010, the Veteran submitted an application to reopen the previously denied claim. In the June 2011 rating decision on appeal, the RO denied the application to reopen the claim for service connection for a cervical spine disorder because the evidence submitted was not new and material. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In March 2017, the Veteran was afforded a Board videoconference hearing. A transcript of the hearing is associated with the claims file. After the hearing, the record was held open to obtain and submit additional evidence in support of the appeal. Additional evidence was submitted accompanied by a waiver of initial agency of original jurisdiction (AOJ) consideration. The issue of entitlement to service connection for Behcet's disease is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In an April 2003 rating decision the RO denied entitlement to service connection for a cervical spine disorder. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period, and the decision thus became final. 2. The additional evidence received since the April 2003 rating decision denying the claim for service connection for a cervical spine disorder relates to unestablished facts necessary to substantiate the claim and raised a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran's cervical spine disorder had its onset in service. 4. The evidence is at least evenly balanced as to whether the Veteran's headaches had their onset in service. CONCLUSIONS OF LAW 1. The April 2003 rating decision denying service connection for a cervical spine disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. Additional evidence received since the April 2003 rating decision is new and material and the criteria for reopening the claim for entitlement to service connection for a cervical spine disorder have therefore been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for establishing service connection for a cervical spine disorder are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for establishing service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an April 2003 rating decision, the RO denied the Veteran's claim for entitlement to service connection for cervical disc disease. Although notified of this denial, the Veteran did not appeal, and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran's claim for service connection for cervical disc disease, claimed as neck pain, was denied because there was no evidence of the claimed condition in and since service. See April 2003 Rating Decision. During the March 2017 Board hearing, the Veteran claimed to have continuous neck pain in and since service attributed to an in-service flag football injury. This evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim. The evidence is thus new and material and the criteria for reopening of the claim for entitlement to service connection for a cervical spine disorder have therefore been met. II. Service Connection The Veteran claims that both his current cervical spine disorder and headaches resulted from an in-service flag football injury. At the March 2017 hearing, he reported sustaining a head injury and neck pain as a result of a collision with another flag football player during service. He also reported having continuous symptoms of neck pain and headaches in and since service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113 (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2017). Arthritis is a listed chronic disease. 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. A. Background Service treatment records document an August 1980 injury from a football incident. The Veteran was hit by another football player and sustained a bruise over his left eye that was discolored and swollen. His July 1980 separation examination, conducted prior to the in-service football injury, was normal. Post-service August 1999 x-rays of the cervical spine showed C5-6 disc disease. In October 2002 the Veteran complained of neck pain and stiffness. X-rays of the cervical spine revealed degenerative changes with disc disease. An impression of neck pain with radiculopathy was provided. November 2002 magnetic resonance imaging (MRI) of the cervical spine showed degenerative changes, disc protrusion, possible impingement, and foraminal stenosis. An impression of neck pain with radiculopathy was provided. In October 2007, he continued to seek treatment for neck pain. January 2009 x-rays of the cervical spine continued to show degenerative disc disease (DDD) and degenerative changes. The Veteran was afforded a VA examination in October 2013. Diagnoses of DDD of the cervical spine, since 2002, and headaches of tension type were noted. He reported neck pain and headaches from an injury during service. Based on a review of the claims file, the examiner opined that the Veteran's current cervical spine and headache conditions were not incurred in or caused by the in-service flag football injury. As rationale, the examiner attributed the Veteran's conditions to post-service injuries. The examiner opined that the Veteran's headaches are related to a post-service head trauma incident resulting in a workers' compensation claim. As for the Veteran's cervical spine disorder, the examiner attributed the current disability to a post-service job injury involving a tractor and T-bar. In an April 2017 letter, a private orthopedic physician provided a positive nexus opinion on the Veteran's current cervical spine disorder and service. Based on review of the claims file, the physician opined that the Veteran's DDD of the cervical spine is more likely than not causally related to his 1980 in-service flag football injury. Based on consideration of the Veteran's report of having stiffness and neck pain after a head collision while playing flag football, the physician stated that there was evidence of progressive DDD. As rationale, the physician referenced 1999 x-rays of the cervical spine documenting stiffness and pain, as well as 2002 x-rays of the cervical spine showing progression of degenerative osteoarthritis and degenerative changes. Further, the examiner referenced the 2002 MRI of the cervical spine showing findings consistent with prior findings. a. Cervical Spine For the following reasons, the Board finds that the record supports the award of service connection for cervical spine disorder. The Veteran was diagnosed with DDD of cervical spine in 2002, thus, he meets the current disability requirement. Moreover, given the Veteran's service treatment records documenting an in-service flag football injury, post-service treatment records, his credible lay statements, as well as the October 2013 VA examiner and April 2017 private physician opinions, the evidence is at least evenly balanced as to whether the diagnosed cervical spine disability is related to service, in particular the in-service flag football injury. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for cervical spine disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. b. Headaches The Board accepts that the Veteran is competent to report certain types of in-service injuries and symptoms which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Board finds that the Veteran is competent to report that his headaches began after an in-service flag football head injury, and that it has been continuous from that time to the present. There is no reason to doubt the credibility of the Veteran's reports, particularly given the consistency of his statements during the October 2013 VA examination and at the March 2017 Board hearing. The evidence of records shows a current headache disability, an in-service injury, lack of complaints on separation examination, and competent and credible lay testimony of continuing headache symptoms supported by the evidence of record. The Board acknowledges the October 2013 VA medical opinion weighing against the claim, but finds it inadequate because it did not fully consider the Veteran's credible statements regarding headache symptoms in and continuing since service. Moreover, lay evidence can be competent when testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence is thus at least evenly balanced as to whether the Veteran's headache disability had its onset in service. As reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for headaches is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) ("Lay evidence may provide sufficient support for a claim of service connection . . . ."). ORDER The application to reopen the claim for service connection for a cervical spine disorder is granted. Entitlement to service connection for a cervical spine disorder is granted. Entitlement to service connection for headaches is granted. REMAND As for the remaining claim on appeal, the Board finds that further development is warranted. The Veteran generally claims to have Behcet's disease from service. At the March 2017 hearing, he reported being diagnosed with the disease after service because it took multiple years to find a proper diagnosis. He also claimed that Behcet's disease resulted from his inflamed tonsils during service. See October 2013 VA Examination Report. In an April 2017 letter, a private physician opined that whether the Veteran's Behcet's disease is more likely than not causally related to military service is dependent on whether the Veteran was exposed to toxic substance during service because Behcet's disease is an autoimmune disorder. If those exposures can be documented, according to the private physician, then the Bechtel's disease would also likely be causally related to service. In this regard, the Board notes that neither the Veteran's DD Form 214 nor his service personnel records appear to be of record. As the private opinion has raised a new theory of entitlement to service connection to Behcet's disease, further development is warranted to determine whether the Veteran was in fact exposed to toxic substances. Specifically, the RO should attempt to obtain the Veteran's service personnel records and DD Form 214. Accordingly, the claim remaining on appeal is REMANDED for the following action: 1. Obtain a copy of the Veteran's complete service personnel records and the Veteran's DD Form 214. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e). 2. After completing the above development, readjudicate the claim remaining on appeal after conducting any additional development deemed appropriate. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs