Citation Nr: 1805783 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-15 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cervical strain disability. 2. Entitlement to service connection for cervical strain disability, to include as due to service-connected disability. 3. Entitlement to a rating in excess of 20 percent for residual right knee injury, status post right knee arthroscopy and meniscus repair. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Jackson, Mississippi RO subsequently acquired jurisdiction. A Board videoconference hearing was scheduled to be held at the Los Angeles RO on August 25, 2017. The Veteran was notified of the hearing by a letter of July 2017. The Veteran failed to report for the hearing and has not requested a new hearing. His request for a Board hearing is considered withdrawn. See 38 C.F.R. § 20.704(d) (2017). The issues of entitlement to service connection for cervical strain disability and entitlement to a rating in excess of 20 percent for right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. A November 2002 rating decision denied service connection for cervical strain. The Veteran did not timely appeal the decision nor submit new and material evidence within one year of the decision. 2. Evidence received since the November 2002 rating decision, i.e., a private treatment record of August 2009 that made an assessment of herniation of cervical intervertebral disc with radiculopathy, relates to a previously unestablished fact necessary to substantiate the Veteran's claim. CONCLUSIONS OF LAW 1. The November 2002 rating decision that denied service connection for cervical strain is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. § 3.156 (2002). 2. Evidence received since the November 2002 rating decision is new and material, and the claim of entitlement to service connection for cervical strain is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Request to Reopen Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. See 38 U.S.C. § 7105(c) (2012). An exception provides that VA shall reopen a disallowed claim if new and material evidence is presented or secured with respect to the claim. See 38 U.S.C. § 5108 (2012). New and material evidence is defined as evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration. Such 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. See 38 C.F.R. § 3.156(a) (2017). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence was not previously presented to the Board. See Anglin v. West, 203 F.3d 1343 (2000). 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 will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b) (2017). If new and material evidence is received before a rating decision becomes final, the RO should issue a new rating decision that relates back to the original claim for purposes of preserving the initially assigned effective date and the application of the extant rating provisions. See Young v. Shinseki, 22 Vet. App. 461, 474 (2009). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence has been submitted is low. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). A rating decision of November 2002 denied service connection for cervical strain. The Veteran did not appeal the rating decision nor submit new and material evidence within one year of the decision, which became final. In April 2010, the Veteran filed inter alia a service-connection claim for "T & C spine condition due to s/c'ed low back." The Board must address the issue of whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In so doing, the Board looks to the evidence submitted since the last final denial of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). The evidence of record at the time of the November 2002 rating decision consisted of service treatment records, VA treatment records, private treatment records, and a January 2002 VA examination report relating to the lumbar spine and right knee. The November 2002 rating decision denied entitlement to service connection on the basis that an in-service injury, post-service complaints or treatment of the cervical spine, and a nexus between a current disability and service or a service-connected disability were not shown. Subsequent to the November 2002 rating decision, an August 2009 private treatment record has been added to the record. At the time of the November 2002 rating decision, the fact of a current disability was an evidentiary defect. The newly submitted treatment record of August 2009 notes a medical assessment of herniation of cervical intervertebral disc with radiculopathy. See August 2009 record of Dr. M. A. The new evidence addresses the unestablished fact of a current disability. Finding that new and material evidence has been received, the Board reopens the claim of entitlement to service connection for cervical strain. ORDER The application to reopen the claim of entitlement to service connection for cervical strain is granted. REMAND Service Connection for Cervical Strain The Veteran seeks service connection for a neck disability on a secondary basis as caused, or aggravated by, his service-connected disability of the lumbar spine. See Veteran's claim of April 2010. Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2017). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected. See 38 C.F.R. § 3.310(b) (2017). The Veteran has herniation of cervical intervertebral disc with radiculopathy. See August 2009 record of Dr. M. A. There is disc protrusion of the cervical spine at C7-T1, C5-C6, and C3-4. See February 2012 record of Dr. S. S. A service treatment record (STR) of June 1983 notes an assessment of cervical sprain. A March 1985 examination report found the "spine, other musculoskeletal" to be normal, and the Veteran reported that he was in good health. A medical evaluation board report of August 1992 noted no cervical spine symptoms upon examination, and none were reported by the Veteran. The Veteran's lower back pain is well-documented in the service treatment records. See, e.g., STRs of September 1986 and October 1990 STR for example. The Veteran has been service-connected for degenerative disc disease of the lumbar spine since December 1992. The Veteran has not been provided a VA medical examination and nexus opinion with respect to his neck claim. A January 2002 VA examination related only to the lumbar spine and not the cervical spine. VA will provide a medical examination or opinion if the record does not contain sufficient evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the veteran has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board may consider only independent medical evidence to support its findings and is not permitted to base decisions on its own medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Under the low threshold of McLendon, a VA medical examination is needed with respect to the Veteran's neck claim. The Board will remand for VA medical examination and opinion as to the likelihood of a link between current disability and service or a service-connected disability, to include disability of the lumbar spine. Increased Rating for Right Knee The Veteran underwent a VA examination of the knees in August 2010. The Veteran reported flare-ups that occur as often as four times per day and last for 15 minutes. The functional impairment of the flare-ups was reportedly pain and limitation of motion characterized by an inability to squat or bend. The examiner did not offer an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups. See VA examination report of August 2010. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Case law and VA guidelines anticipate that examiners will use information procured from relevant sources, including lay (non-expert) statements, to estimate additional functional loss during flare-ups of musculoskeletal disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board will remand for a VA examination that follows the guidelines of Deluca and Sharp. Remand is also necessary in light of Correia v. McDonald, 28 Vet. App. 158, 169- 170 (2016), which held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. The August 2010 VA examination report for the knees does not reflect joint testing for pain in the latter contexts. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all relevant treatment records relating to the remanded issues and to associate those records with the Veteran's claims folder. All records/responses received must be associated with the claims folder. 2. Schedule the Veteran for an appropriate VA examination with a qualified examiner to determine the nature and etiology of any neck disability, including all neurological manifestations, since the Veteran filed his service-connection claim in December 2001, even if now resolved. The Veteran's virtual claims folder must be made available for the examiner's review. All appropriate clinical testing should be conducted. The examiner is asked to provide a current diagnosis and to respond to the following questions: a. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's neck disability is related to service; b. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's neck disability is due to, or caused by, a service-connected disability, to include his service-connected disability of the lumbar spine; and c. Whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's neck disability is aggravated by a service-connected disability, to include his service-connected disability of the lumbar spine. "Aggravation" is an increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's neck disability prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are due to service-connected disability Consideration should be given to whether any radiculopathy is associated with the Veteran's service-connected disability of the lumbar spine and/or with cervical spine disability. A rationale for the opinions in the report must be provided. 3. Schedule the Veteran for an appropriate VA medical examination with a qualified examiner to assess the orthopedic manifestations of the disability of the right knee, including all neurological manifestations. The Veteran's virtual claims folder must be made available for the examiner's review. All testing deemed necessary to rate the knee disability under the criteria of the VA rating schedule must be conducted, and the results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If an examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. If the Veteran is not suffering from a flare-up of his knee disability at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of flare-ups in terms of range of motion on the basis of that information. Consideration should be given to whether any right lower extremity radiculopathy is associated with the Veteran's service-connected disability of the lumbar spine and/or with cervical spine disability. A rationale for the opinions in the report must be provided. 4. Ensure that the requested development is completed to the extent possible, and arrange for any additional needed development. Then readjudicate the remanded issues. If any benefit sought on appeal remains denied, issue an appropriate supplemental statement of the case, and provide the Veteran with the requisite period of time in which to respond. The case should then be returned to the Board for further appellate review, if otherwise 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs