Citation Nr: 1803244 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-09 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a March 2015 Statement in Support of Claim, the Veteran withdrew his request for a Board hearing. The Board notes that based on the evidence of record, the Veteran's claim was originally a claim for entitlement to service connection for a cervical spine fracture, then it was claimed as a claim for entitlement to service connection for a right side of the neck injury. The Board has re-characterized the Veteran's claim more broadly as a claim of entitlement to service connection for a cervical spine disability, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The issue of entitlement to service connection for a cervical spine disability is being REMANDED and is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in November 2004, the RO denied the Veteran's claim of entitlement to service connection for cervical spine fracture. 2. Evidence added to the record since the November 2004 prior final denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim for a service connection for a cervical spine disability. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final November 2004 decision, the criteria for reopening the claim of entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence Legal Principles and Regulations In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, in a November 2004 rating decision, the RO denied the Veteran's claim for service connection for a cervical spine fracture for a lack of a current disability, an in-service occurrence, and a nexus opinion linking an asserted current disability to service. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In April 2010, the Veteran submitted a claim to reopen his claim for a cervical spine disability. The evidence of record at the time of the final prior denial in November 2004, included, inter alia, the Veteran's service treatment records and a July 2004 VA letter requesting additional information from the Veteran. The evidence submitted and obtained since the November 2004 prior final denial includes the Salisbury VA Medical Center (VAMC) treatment records from November 2002 through November 2011, the Veteran's April 2010 and August 2011 Statements in Support of Claim, a July 2010 VA examination; and additional service treatement records. Upon review, the Board finds this evidence is both new and material sufficient to reopen the Veteran's claim. The evidence is "new" as it had not been previously considered by VA, and the evidence is "material" because it relates to unestablished facts necessary to substantiate the underlying secondary service connection claim. Specifically, the Veteran's Salisbury VAMC treatment records reflect the Veteran has cervical spine degenerative disc disease and that the Veteran reported 40 years of neck pain; thus, supporting a finding of competent evidence that the Veteran has a current disability and an in-service occurrence. Additionally, the Veteran's April 2010 Statement in Support of the Claim, in which he stated that during a fall in service he injured his right side of the neck, supports a finding of competent evidence of an in-service occurrence. Furthermore, the Board notes that in the Veteran's August 2011 Statement in Support of the Claim, the Veteran contends a relationship between his service-connected residuals fracture, right 5th metacarpal, and his cervical spine condition, thus supporting a finding of competent evidence that the Veteran's neck condition may be aggravated by his service-connected residual fracture of the right 5th metacarpal. Lastly, the Board notes that in a February 2013 Statement of the Case, the RO determined that because it was unable to ascertain whether the additionally submitted service treatment records were duplicates, as the originally submitted service treatment records were no longer associated with the file; the RO accepted the additionally submitted service treatment records as being new and material evidence. Thus, as the evidence is new and material, reopening of the claim is in order. Shade, 24 Vet. App. 110. ORDER New and material evidence having been received; the claim of entitlement to service connection for a cervical spine disability is reopened. REMAND In regards to the Veteran's claim for service connection for a cervical spine disability, having received new and material evidence in support of this claim, the Board finds a remand is warranted as further development is required. To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of his cervical spine disability. The duty to assist is triggered when it is necessary to obtain an examination to make a decision in the case. See 38 U.S.C. § 5103A (d) (West 2012). An examination or medical opinion is warranted when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran's medical treatment records reflect a current diagnosis of degenerative disc disease of the cervical spine. The Veteran attributes his cervical spine disability to his in-service, May 12, 1967 fall, in which he fractured his right 5th metacarpal. Specifically, the Veteran contends that during service in Korea, he sustained a fall and injured his right hand (5th metacarpal), two ribs, and hit his head. See March 2010 Salisbury VA medical treatment record. The Veteran contends that since the time of this in-service injury, he has suffered from constant neck pain that has intensified over the years. Although the Veteran's post-service records reflect constant complaints and treatment of the Veteran's cervical spine, the Veteran's service treatment records do not reflect an injury, complaint, or diagnosis specifically associated with his cervical spine disability. The Board notes, that although the Veteran has never been afforded a VA examination in relation to his cervical spine condition, in a July 2010 VA Compensation and Pension (C&P) examination report for Hand, Thumb, and Fingers, the Veteran was evaluated for any residuals of his service-connected right 5th metacarpal fracture. The Veteran reported that he has developed carpal tunnel that runs up his arm and he has a problem with his neck. The VA examiner noted that the Veteran had a well-healed right 5th metacarpal fracture without residual to the 5th metacarpal. Additionally, the VA examiner opined that the Veteran's right carpal tunnel and complaints of neck pain are not caused by the right 5th metacarpal fracture. However, the VA examiner did not address whether the Veteran's service-connected 5th metacarpal fracture has aggravated the Veteran's cervical spine condition. Thus, while the July 2010 VA examiner addressed whether the Veteran's cervical spine disability was caused by the Veteran's service-connected residuals fracture, right 5th metacarpal, the VA examiner did not address whether the Veteran's cervical spine disability has been aggravated by his service-connected residuals fracture, right 5th metacarpal. See El Amin v. Shinseki, 26 Vet. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. Given such, in light of the being service-connected for residuals fracture, right 5th metacarpal, in conjunction with the Veteran's lay statements that his neck pain began at the time of the in-service injury, which reflects a possible relationship between the Veteran's service-connected residuals fracture, right 5th metacarpal and his cervical spine disability, the Veteran may be entitled to service connection under a theory of secondary service connection. Consequently, VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). Therefore, the Veteran is now entitled to a VA medical examination and opinion addressing the nature and etiology of the Veteran's cervical spine disability, specifically addressing whether the Veteran's cervical spine disability is at least as likely as not proximately caused or proximately aggravated by his service-connected residuals fracture, right 5th metacarpal. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and non-VA medical records and associate with the claims file. 2. Schedule the Veteran for a VA examination to determine the onset and etiology of his cervical spine disability. The examiner is required to review the claims file. The examiner should provide an opinion to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that any cervical spine disability began in active service; or is due to an injury or disease during such service. (b) Whether it is as least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cervical spine disability is (a) proximately caused by or (b) proximately aggravated by the Veteran's service-connected residuals fracture, right 5th metacarpal. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. If aggravation is found, to the extent possible, the examiner should identify the clinical signs, symptoms, and manifestations of any such disorder which establish: (1) the degree of severity before the onset of aggravation of the cervical spine disability; and (2) the degree of severity at the onset of aggravation of this condition. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of neck pain. S/HE should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. A complete rationale should be provided for any opinion stated. If the requested opinion cannot be rendered without resorting to speculation, the examiner should state why an opinion cannot be provided. 3. When the development requested has been completed, the case should be readjudicated by the AOJ. If any benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs