Citation Nr: 1755054 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 09-15 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for a cervical spine disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1964 to February 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO) that denied reopening of the claim. The Board remanded the claim in March 2014 and July 2016 for additional development. In May 2011 and December 2015, hearings were held on the issue. In a March 2014 remand, the Board noted that separately appealed claims required a hearing and that testimony regarding those claims would be relevant to the adjudication of the cervical spine issue. Because more than one Veteran's Law Judge (VLJ) participated in the adjudication of the cervical spine issue, a panel of three VLJs is required to adjudicate the claim. 38 U.S.C.A. § 7102 (a) (West 2014). Accordingly, a third VLJ has been assigned to participate in a panel decision in this case. The Veteran was offered the opportunity to testify at another hearing before the third VLJ in accordance with Arneson, and that hearing was held in April 2017. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Overall, the Veteran has had three hearings with each of the three VLJ panel members: Acting VLJ Werner in May 2011, VLJ Millikan in December 2015, and VLJ Moshiashwili in April 2017. Transcripts of these hearings have been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An unappealed March 1994 rating decision denied service connection for a spine disability because there was no evidence of a causal link (nexus) between the disability and service; evidence received since that decision (in the form of private medical opinions provided in March 2008 and April 2011) was not of record at that time; suggests a causal link between the disability and service; relates to an unestablished fact necessary to substantiate the underlying claim; and raises a reasonable possibility of substantiating that claim. 2. The evidence does not clearly and unmistakably show that the Veteran suffered from a cervical spine disorder that preexisted service and does not clearly and unmistakably show that his current cervical spine disability was not aggravated by service. 3. The evidence reasonably shows that the Veteran's current cervical spine disability was aggravated by injuries received in service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim for service connection for a cervical spine disability is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 2. The presumption of soundness has not been rebutted with regard to the Veteran's cervical spine disability and, therefore, the Veteran is presumed sound upon entrance to service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). 3. The criteria for entitlement to service connection for cervical spine disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b), 5110(a) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence In general, rating decisions that are not appealed within one year are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (2016). However, if new and material evidence is presented or obtained with respect to a claim which has been disallowed, the Secretary shall reopen and review the former disposition of the claim. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. See 38 C.F.R. § 3.156. "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. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). When determining whether evidence is new and material, the "credibility of the evidence is to be presumed." See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The requirement that new and material evidence raise a reasonable possibility of substantiating the claim is a low threshold, to be viewed as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this case, a March 1994 rating decision denied the claim for service connection because there was no evidence that in-service spine injuries were causally related to the Veteran's diagnosed cervical spine disabilities. The Veteran did not appeal the March 2004 decision and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. Since the March 1994 rating decision, the Veteran has submitted March 2008 and April 2011 private treatment records and medical opinions that address the causal connection between the in-service injuries and current cervical spine diagnosis. These records were not previously before the Board and relate to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence and the claim is reopened. Service Connection Service connection is warranted where the evidence establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing service, was aggravated by events in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), 3.306 (2016). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus (causal link) between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Aggravation may be established when the evidence indicates that the disability increased in severity during service (beyond any natural progress of the preexisting condition). Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). When no preexisting injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The burden then shifts to the government to rebut this presumption with clear and unmistakable evidence that the injury or disease was both pre-existing and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The determination of whether the record contains clear and unmistakable evidence of sufficient weight to rebut this presumption of soundness is subject to de novo review by the Board. See Contant v. Principi, 17 Vet. App. 116, 130 (2003); Junstrom v. Brown, 6 Vet. App. 264, 266 (1994). The presumption of soundness attaches where a veteran is examined, accepted, and enrolled for the period of service and where examination does not reveal defects, infirmities, or disorders. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In this case, while the Veteran reported a 1956 driving accident causing a "pressure fracture of the 7th cervical," the Veteran's service entrance examination noted a "normal" spine and, therefore, the Veteran was determined qualified for a period of active duty and the presumption of soundness attaches. See Crowe v. Brown, 7 Vet. App. 238, 245-46 (1994) (finding that a preexisting disease was not "recorded in [an] examination report" despite a notation of "asthma age 4 with all recurrences since denied" because no abnormalities were noted upon examination). Furthermore, there is not clear and unmistakable evidence that the Veteran's cervical spine fracture preexisted service. While the Veteran reported that he had a previous back injury, signed statements from the Veteran relating to the origin or incurrence of any injury are of no force if they are against his interest. 38 C.F.R. § 3.304(b)(3). Accordingly, with respect to his back claim, the Veteran is presumed to have been in sound condition when he entered service. As a result, the current claim on appeal is not a claim for service connection based on aggravation of a pre-existing condition but, instead, a claim for direct service connection. Proceeding to the analysis for service connection, the Veteran has satisfied the first element of service connection because the record shows a current cervical spine disability. Private treatment records show that the Veteran has been diagnosed with and treated for degenerative joint disease of the cervical spine and cervical facet syndrome. VA and private treatment records show that his cervical spine disabilities mandated previous spinal fusions and other surgical procedures to address his painful symptoms. The record also shows that the Veteran suffered from an in-service back injury, satisfying the second element for service connection. Service treatment records (STRs) indicate that the Veteran was hospitalized for several weeks with a cervical spine injury after an in-service motor vehicle accident in 1966. He was diagnosed with "herniated nucleus pulposus, cervical, C6-C7." At the time, his treating physicians noted that the accident caused decreased flexion, decreased sensation, and decreased strength in upper extremities. The STRs are consistent with the Veteran's testimony about the in-service accident. As to whether the in-service injury caused or aggravated the cervical spine disability, private medical opinions state that the in-service spinal injury caused his current back disability. A private physician stated in April 2011 that, while the Veteran suffered a cervical spine injury at the age of fifteen, his spine had recovered from that injury by the time he enlisted in the military and that the second spinal injury during service (which resulted in "extensive hospitalization") and that it was "more likely than not that [the Veteran's] current state of health is related to this injury in service." Similarly, a March 2009 private physician provided a positive causal link between the in-service motor vehicle accident and the Veteran's current cervical spine condition, explaining that, "from reviewing the records, I think it is fairly clear-cut that without the patient's time in the military he would not have the level of symptoms he has experienced." The physician found that the in-service motor vehicle accident caused the Veteran's current back condition, which was reflected in the separation evaluation where pain and numbness of upper extremities and tenderness of the cervical spine were noted. Therefore, the Board finds that the preponderance of the evidence supports a finding that the Veteran's cervical spine disability was caused by the motor vehicle accident in service and that service connection for a cervical spine disability is warranted. (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been received and the claim for service connection for a cervical spine disability is reopened. Entitlement to service connection for a cervical spine disability is granted. ________________________ _______________________ NEIL WERNER K. MILLIKAN Acting Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________ VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs