Citation Nr: 1754766 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-34 234 ) 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 thoracic spine disability, residuals of injury to the right trapezius and upper back. 2. Entitlement to service connection for Alzheimer's disease. 3. Entitlement to service connection for right shoulder pain, claimed as secondary to cervical and thoracic spine disabilities. 4. Entitlement to service connection for right arm pain, claimed as secondary to cervical and thoracic spine disabilities. 5. Entitlement to an increased rating for Bell's palsy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty from March 1966 to March 1987. This matter comes to the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the record indicates that in his May 2010 claim, the appellant claimed entitlement to service connection for a cervical spine injury. In the rating decision on appeal, however, the RO adjudicated the issue of whether new and material evidence has been received to reopen a previously denied claim of service connection for residuals of a right trapezius strain, upper back muscle strain. The record on appeal contains clinical records, including an October 1995 MRI, that show both thoracic and cervical spine issues. The Board reads the May 2010 claim and subsequent evidence submitted by the appellant sympathetically and broadly to encompass two claims, one for a reopening of the claim for a thoracic spine disability, previously rated as right trapezius strain, upper back muscle strain, and as a new claim for service connection for a cervical spine injury. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The claim of service connection for a cervical spine disability has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of service connection for a right arm disability, service connection for right shoulder disability, and an increased rating for Bell's palsy are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a June 2004 rating decision, the RO denied service connection for right trapezius strain, upper back muscle strain. Although the appellant was notified of the RO's decision and his appellate rights in a June 2004 letter, he did not perfect an appeal within the applicable time period nor was new and material evidence received within the following year. 2. The evidence received since the final June 2004 rating decision denying service connection for a right trapezius strain, upper back muscle strain includes additional evidence, which is neither cumulative nor redundant, and which bears directly and substantially on the specific matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The appellant's thoracic spine disability is linked to an ejector seat accident during service. 4. The appellant's Alzheimer's disease did not manifest in service, did not manifest or to a compensable degree within a year of separation and the record contains no indication that the appellant's current Alzheimer's disease, first evident in the mid-1990's, is causally related to his active service or any incident therein. CONCLUSIONS OF LAW 1. The June 2004 rating decision denying service connection for right trapezius strain, upper back muscle strain is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received, warranting the reopening of the appellant's claim for service connection for a thoracic spine disability, residuals of injury to the right trapezius and upper back. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a thoracic spine disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for Alzheimer's disease have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistant Act of 2000 (VCAA) When VA receives a complete or substantially complete application for benefits, VA must inform claimants of the information and evidence they are expected to provide, as well as the information and evidence VA will seek to obtain on their behalf. 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159(b)(1) (2017). VA is also required to advise a claimant of the information and evidence not of record that is necessary to substantiate their claim. 38 U.S.C. §§ 5103(a); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate their claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty requires the Secretary to assist in obtaining relevant records that the claimant has adequately identified to the VA and to obtain a VA examination or opinion if it is necessary to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The appellant was notified in a June 2010 letter of what evidence was required to substantiate his claim for Alzheimer's disease, what evidence the appellant needed to supply, and what evidence VA would obtain on his behalf. The letter also requested the appellant to submit information sufficient to identify and locate relevant records. The appellant submitted a signed VCAA acknowledgement letter in July 2010. The Board finds that the duty to notify under the VCAA has been met. The VA has obtained the appellant's service treatment and service personnel records. Included in those records are the appellant's entrance examination, yearly physical examinations, documentation on numerous incidents of in-service treatments for various conditions, and the appellant's separation examination. The appellant claims on his VA Form 9 that VA had not received all pages of his in-service medical records and personnel records. However, the record contains both the appellant's entrance and exit examinations and the records appear to be complete. The appellant has not identified any particular deficiencies in his records. The appellant must cooperate fully to obtain relevant records by providing enough information to identify and locate the existing records. 38 C.F.R. § 3.159(c) (2) (i); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Absent more specific information from the appellant, the Board finds that VA's duty to assist in obtaining records is met for this claim. The VA's duty to assist also includes providing a medical examination or obtaining a medical opinion 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, (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, and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006 ). The Board finds that VA did not have a duty to provide the appellant with an examination relating to his Alzheimer's disease. The appellant's private treatment records confirm he has a diagnosis of Alzheimer's disease. However, the appellant has made no statements and the record does not suggest an in-service incurrence of the disease. In fact, his only statements regarding the etiology of the disease are that he noticed symptoms in the mid 1990's. Moreover, there is no indication, to include the appellant's own statements, of an in-service event or a nexus between the appellant's service and his current disability. Waters v Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting the notion that merely filing a claim or that claimant's generalized conclusory statement regarding nexus entitles the claimant to a VA examination as this would eliminate the carefully drafted statutory scheme). Therefore, the Board finds that no VA examination is required in this case. McLendon, 20 Vet. App. 81. New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7 105(c); 38 C.F.R. § 20.1103. A claimant may reopen a final decision by submitting new and material evidence. 38 C.F.R. § 3.156. New and material evidence is existing evidence, which has not been previously submitted to agency decision makers and that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The appellant's original claim for service connection relating to an upper back muscle strain was denied by the RO in a December 1987 rating decision because the alleged in-service event, a muscle strain in 1978, was described by the RO as acute and transitory and the appellant was not found to have a current disability. That rating decision was not appealed within the 1 year period and is final. 38 U.S.C. § 7105(c). The appellant's claim was reopened by the RO in 2003 after new and material evidence was submitted that established that the appellant had a disability in his thoracic spine area. Service connection was denied by the RO in a June 2004 rating decision on the basis that a May 2004 VA medical examiner concluded that she was unable to link the appellant's current thoracic spine disability to service without resorting to speculation. That rating decision was not appealed within the 1 year period, nor was new and material evidence received during that period. Thus, the decision is final. 38 U.S.C. § 7105(c). In May 2010, the appellant filed a claim which the RO interpreted as a request to reopen the previously denied claim of service connection for a thoracic spine disability. In developing the claim, the appellant's VA treatment records up to 2011 were obtained which confirmed statements he made regarding an in-service injury. He also made new statements that his injury was causing new and recurring symptoms. Given the service treatment records documenting an in-service injury, the appellant's statements regarding continuing and new symptoms raise a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has therefore been received in this case, and is reopening the claim for service connection for a thoracic spine disability. Service Connection Service connection may be established for a disability resulting from a personal injury suffered or a disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and an organic disease of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is legally presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection for a chronic disease, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated as chronic diseases under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in a decision on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also 38 C.F.R. § 3.102. "This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an 'approximate balance of positive and negative evidence.' By tradition and by statute, the benefit of the doubt belongs to the veteran." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis In general, to establish service connection, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Thoracic Spine Disability The appellant currently suffers from a thoracic spine disability. The appellant submitted evidence from his treating doctors detailing his diagnosis and treatment of an injury to his T3-T4 vertebrae. Magnetic Resonance Imaging (MRI) results from October and November 1995 revealed a disk rupture that had compressed his spine into a moon shape. The appellant had a discectomy in 1995 to correct the issue. The first element of service connection, a present disability, is met for this claim. With respect to the second element, in-service incurrence or aggravation of a disease or injury, the record shows that the appellant suffered several in-service injuries to his back and left service with recurrent back pain. Some of these injuries are noted in his service treatment records while one is not. The appellant has documented injuries to his back in his service treatment records from April 1976 (pulled muscle in upper back), January 1978 (left trapezius strain), August 1978 (pulled muscle in right trapezius), and March 1982 (lower back pain). A February 1985 radiological report also found that the appellant had a slight right convex scoliosis of his upper lumbar spine as well as spondylolisthesis. In addition, the appellant reported in March 2003 and March 2004 statements that he injured his upper back and neck during a training exercise where his ejector seat malfunctioned. According to the appellant his chair, which was placed on a track for training purposes, misfired, causing him to hit the stopping point hard. This accident resulted in temporary paralysis, extreme pain in his back, neck, and arms, and a feeling like he had been punched in the head. The appellant's entrance examination showed no upper extremity injuries or back abnormalities. While his exit examination did not note any upper extremity or back abnormalities, the appellant stated that he was experiencing recurrent back pain at his separation examination in November 1986. The appellant is competent to testify as to injuries he incurred while in service and their symptoms. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The appellant served 21 years as an officer in the Air Force and his DD Form 214 lists his Occupational Specialty as Navigator, Weapons Systems Officer with over 13 years flying in F-4 fighter jets. This kind of ejector seat training and accident are consistent with the expected duties and training of someone with a specialty designation of Weapons System Operator who flies in fighter jets. 38 U.S.C. § 1154(a); 39 C.F.R. § 3.159(a)(2). Resolving all reasonable doubt in the appellant's favor, and noting that the appellant's statements are consistent with his military occupational specialty, the Board finds his recollection of the ejector seat accident credible. Gilbert, 1 Vet. App. at 54. Further the Board notes that the appellant suffered multiple back injuries during the course of his service, the first of which occurred during an ejector seat accident in 1972. The second element of service connection, an in-service injury, is met for this claim. With respect to the third element of service connection, a causal relationship between the present disability and the in-service injury, the record contains conflicting evidence. Two medical opinions have been presented in this case on the cause of the appellant's current thoracic spine disability. The first opinion was offered by the appellant's treating physician in March 2004 and the second was offered by a VA examiner in May 2004. In Nieves-Rodriguez v. Peake, the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence." Nieves-Rodriguez, 22 Vet. App. 22 Vet. App. 295, 302 (2008). The first factor to be considered in determining probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In March 2004, the appellant's longtime treating physician, a former Navy flight surgeon, found that the appellant's thoracic spine injury was likely the result of in -service trauma. The examiner further stated that the appellant's symptoms only manifested after the ejector seat training accident, and the kinds of forces applied on the body during ejection seat activation make an "indisputable case for a cause and effect relationship." The examiner relied on the appellant's recall of the accident and more than 20 year history of back issues. In May 2004 a VA examiner reviewed the appellant's file and concluded that the appellant's thoracic spine disability was not at least as likely as not related to service. The examiner based the opinion on the lack of documentation for the ejector seat accident in the appellant's service treatment records. After examining both examinations, the Board finds that the private opinion outweighs the VA opinion. Both opinions were provided by qualified professionals who are competent to diagnose a back injury and render an opinion on its cause. However, the May 2004 examination is deficient in its reasoning because it improperly relied on the absence of medical records corroborating the 1972 ejector seat accident to conclude there was no relationship between the appellant's back injury and his service. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). It also failed to consider the appellant's statements that he was experiencing recurrent back pain at separation. The March 2004 opinion, in contrast, considers all of the appellant's medical history and statements regarding the history and etiology of his back disability. Moreover, it was also offered by a former Navy flight surgeon, who has specialized training in treating pilots in the Armed Services. The Board finds the March 2004 private opinion outweighs the May 2004 VA opinion and that the weight of the evidence is at least in equipoise. Therefore, resolving all reasonable doubt in the appellant's favor, the Board determines that it is at least as likely as not that a causal connection links Appellant's present thoracic spine disability and his in-service back injuries and that service connection is therefore warranted for a thoracic spine disability. Gilbert, 1 Vet. App. at 54. Alzheimer's Disease The appellant has a current disability of Alzheimer's disease. In May 2008, the appellant was diagnosed with senile dementia of the Alzheimer's type and was accepted into a research study for patients suffering from mild to moderate Alzheimer's disease. The first element, a present disability, is met for this claim. The appellant has not established any in-service incurrence of his Alzheimer's disease or any of its related symptoms. His entrance examination does not note any diagnosis of the disease, nor is it marked on his separation examination. The appellant did not mark that he was having memory issues on his report of medical history at any point in-service nor at his separation examination. The appellant told his treating physicians that he began to notice memory issues in the mid 1990's, more than 1 year after separation from service. He was not diagnosed with the disease until 2007, about 20 years after his separation from service. The second element of service connection, an in-service incurrence of the disease, is not met for his claim. The appellant has also not presented any evidence or even stated that a link exists between his current Alzheimer's disease and his service. The appellant's private treatment records do not provide any etiology for the development of his disability. The appellant has not even offered a statement that he believes that his disease began or was related to his active service. The only statements that he has made were that he began to experience memory loss in the mid-1990. The third element for service connection, a link between a current disability and an in-service incurrence of the condition, is not met for this claim. In order for service connection to be granted, all of the elements of the claim must be met. Holton, 557 F.3d at 1366. The appellant has not provided any evidence to establish the in-service incurrence of his Alzheimer's disease or an etiology connecting it with his active service. The appellant is responsible for presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a). Even granting the appellant the benefit of all reasonable doubt, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for Alzheimer's disease. Gilbert, 1 Vet. App. at 54. ORDER Entitlement to service connection for a thoracic spine disability is granted. Entitlement to service connection for Alzheimer's disease is denied. REMAND Right arm and shoulder pain The appellant's claim from May 2010 included claims of right shoulder pain and right arm pain as secondary to a cervical spine injury. These claims were converted into claims for secondary service connection related to the above discussed claim to reopen. The RO found there was no new and material evidence presented sufficient to reopen the claim and therefore, found that no secondary service connection could be granted for right shoulder pain and right arm pain because the underlying claim was not service connected. The RO also found there was no evidence to support a finding of direct service connection. No VA examination or opinion was obtained in reaching this decision. Given that a claim for a thoracic spine disability has been reopened and granted, secondary service connection with regard to that claim is now viable. An examination is necessary to determine whether the appellant has a current disability related to his right arm and shoulder pain and any etiology for the disability. In addition, as set forth above, the appellant has claimed entitlement to service connection for a cervical spine disability. This claim has not yet been adjudicated by the RO. Given the appellant's contentions regarding his right arm and shoulder disability, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Increased Rating for Bell's palsy The appellant asserts entitlement to an increased rating for Bell's palsy, currently rated at 10 percent disabling from June 1, 2010. The appellant had a VA examination in February 2011 which found that he had some loss of sensation in his face due to his Bell's palsy. The appellant stated at that time that he had no issues chewing or swallowing. Based on the results of the examination, a 10 percent rating was assigned in a June 2011 rating decision. In an October 2011 notice of disagreement, the appellant stated that his Bell's palsy causes him constant problems, including difficulty with chewing and swallowing and issues with his vision, which in turn causes him anxiety. The Board finds that the appellant's October 2011 notice of disagreement asserts a worsening of his condition since the last examination and that an additional VA examination is necessary to determine the current extent of the appellant's disability. Accordingly, the case is REMANDED for the following actions: 1. After undertaking any necessary notification and development action, the RO should adjudicate the claim for service connection for cervical spine disability. 2. The RO should schedule the appellant for an appropriate VA examination to determine the nature and etiology of the appellant's right arm and shoulder pain. The claims folder must be provided to the examiner for review in connection with the examination. After examining the appellant, taking his medical history, and reviewing the claims folder, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the appellant's right shoulder and arm pain is attributable to his active service or any incident therein, to include his 1972 ejector seat accident, or to any service-connected disability, to include the service connected thoracic spine disability. 3. The appellant should be afforded an appropriate VA examination to determine the current severity of his service connected Bell's palsy. After examining the appellant, taking his medical history, and reviewing the claims folder, the examiner should provide an opinion, with supporting rationale, as to the current severity of the appellant's Bell's palsy. In providing the opinion, the examiner should specifically delineate all manifestations of that disability and comment on their severity. 4. After the above development has been completed, and after conducting any additional development deemed necessary, the RO should review all the evidence of record in adjudicating the appellant's remaining claims on appeal. If the appellant's claims remain denied, he and his representative should be provided with a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration, if 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. §§ 5109B, 7112 (West 2014). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs