Citation Nr: 1806035 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-15 544A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative disk disease of the cervical spine. 2. Entitlement to service connection for a cervical spine condition to include degenerative joint disease. 3. Entitlement to service connection for depressive disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran had active duty from January 2001 to April 2009. This matter comes before the Board of Veterans Appeals (Board) from an April 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee and an April 2012 rating decision in Montgomery, Alabama. The Board notes that during the pendency of this appeal, the Veteran moved and the Atlanta, Georgia now has jurisdiction of these matters. In September 2017, the Veteran and her husband testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDINGS OF FACT 1. In an April 2009 rating decision, the RO denied entitlement to service connection for cervicalgia. The Veteran did not appeal. 2. Evidence obtained since the unappealed April 2009 rating decision that denied service connection for cervicalgia is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim for service connection for mild degenerative disk disease of the cervical spine (previously claimed as cervicalgia). 3. The symptoms of the Veteran's cervical spine arthritis were chronic in service and continuous since service separation; there is a current diagnosis of degenerative joint disease (arthritis) of the cervical spine. 4. The Veteran has a depressive disorder that is caused by her service-connected degenerative joint disease of the cervical spine. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for degenerative disk of the cervical spine. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for a cervical spine disorder, to include degenerative joint disease, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a) (2017). 3. The criteria for service connection for a depressive disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Board finds that the VA has satisfied its duties under the VCAA. Specifically, letters sent to the Veteran in November 2011 and December 2010, which detailed the claims process and advised the Veteran of the evidence and information needed to substantiate her claims. In the letters, the Veteran was informed of both the need for new and material evidence to reopen her previously denied claim, and the criteria for establishing the underlying claim for service connection with regard to those matters, which had been previously denied. The letters further informed the Veteran of her obligations to provide necessary information to assist in her claims and the VA's obligations to obtain such evidence and information that is deemed to be in the VA's possession or that the VA has permission to obtain. The letters also informed the Veteran of VA's practices in assigning disability evaluations and effective dates. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained. VA obtained the Veteran's service treatment records, private treatment records, and VA treatment records relevant to the claims. Moreover, VA provided the Veteran with adequate VA compensation examinations regarding the her claims. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. II. Claims to Reopen Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). Where a service connection claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C. § 5108. The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal regardless of the RO's determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). VA regulations define "new" evidence as existing evidence not previously submitted to agency decision makers. "Material" evidence is defined as existing evidence 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 (a). New and material evidence cannot be cumulative or redundant and must raise a reasonable possibility of substantiating the claim. Id. If new and material evidence is received prior to the expiration of the appeal period following a particular rating decision, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). In November 2011, the Veteran filed a petition to reopen her claim of service connection for a neck condition. In April 2012, the RO denied the Veteran's claim to reopen. The relevant evidence of record considered by the RO in the final April 2009 rating decision denying service connection for cervicalgia consisted of the Veteran's service treatment records (STRs) which were positive for diagnosis and treatment of cervicalgia; and a VA examination showing a current diagnosis of cervicalgia but was not supported by clinical findings. Based on this evidence, the RO found service connection unwarranted for cervicalgia. Again, the April 2009 rating decision became final. It is therefore not subject to revision upon the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. The evidence that must be considered in determining whether there is a basis for reopening the Veteran's claim is relevant evidence that has been added to the record since the April 2009 rating decision. The relevant evidence that has been added to the record consists of private treatment records, which showed treatment for neck pain. VA outpatient treatment records from April 2009 to the present, which showed a diagnosis and treatment for chronic neck pain. An April 2014 VA examination report, in which the VA examiner diagnosed the Veteran with degenerative disease( arthritis) of the cervical spine and provided a negative nexus opinion. The Veteran's testimony connecting her neck condition to her military service and additional Veteran's lay assertions. The evidence received since the final rating decision to provide new evidence indicating that the Veteran's current disability is chronic and due to her military service. The Board finds that the new evidence is material, as it relates to a previously unestablished fact, that the Veteran's current disability is chronic and related to her military service, which raises a reasonable possibility of substantiating the claim. Accordingly, the claim for entitlement to service connection for mild degenerative disk of the cervical spine (previously claimed as cervicalgia) is reopened. The Board is not conducting an assessment of the probative value of the new lay and medical evidence. Nevertheless, it can be fairly said that the new evidence tends to support elements of the claims necessary for a service connection finding. Further, for the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Thus, assuming its credibility for the purpose of this analysis, the Board finds that the new evidence tends to prove previously unestablished facts necessary to substantiate the underlying claims of service. The newly received evidence raises a reasonable possibility of substantiating the Veteran's claims. Accordingly, the claim of entitlement to service connection for mild degenerative disk of the cervical spine (previously claimed as cervicalgia) is reopened. In the sections below, the Board will address the Veteran's service connection claim for cervical spine condition to include degenerative joint disease and service connection for depressive disorder. III. Service Connection The Veteran seeks service connection for a cervical spine condition and depressive disorder. Degenerative joint disease (arthritis) may be presumed to have incurred in service if manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303 (b). The chronicity provision of 38 U.S.C. § 3 .303 (b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a) (2012); Baldwin v. West, 13 Vet. App. 1(1999); 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107 (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2017). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365.. Cervical Spine The Veteran asserts that symptoms of her current cervical spine condition began during service and have continued since that time. She contends that while in service she was in Humvee accident, which led to the onset on his cervical spine condition symptoms. The STRs reflect that the Veteran was involved in a Humvee accident in 2003. An August 2003 treatment note documented that the Veteran complained of neck pain and was diagnosed with cervicalgia. On a January 2004 post deployment assessment the Veteran marked "yes" that, she had medical problems that were developed during her deployment. She indicated that during her deployment she developed back and neck pains. During an April 2005 visit, the Veteran complained of neck pain. She indicated that she experienced neck pain for a week. She reported that she injured herself while riding in the back of a Humvee. She indicated that she did not know what caused the relapse of her neck pain. The examiner diagnosed her with cervicalgia. After service, treatment records demonstrated that the Veteran repeatedly sought and received treatment for complaints related to her cervical spine from 2010 to the present. For example a December 2010 VA treatment note, documents that Veteran reported that she had neck pain since 2003. The Veteran reported that she injured her neck from a Humvee incident. A February 2011 private physical therapy record documented that, the she complained of pain and stiffness in her neck. She reported that her neck condition was gradually getting worse. VA post-service treatment notes from 2011 to the present revealed that the Veteran was diagnosed and treated for chronic neck pain. The Board initially notes that the Veteran has a current diagnosis for degenerative joint disease, arthritis, of the cervical spine, which was indicated in an April 2014 VA examination report. Thus, the Veteran has met the first element required for service connection. Turning to the question of nexus, the April 2014 VA examiner, in response to a question asking to describe the relationship between the current mild degenerative disc disease of the cervical spine and the complaints in service, indicated that the Veteran was diagnosed with a cervical sprain while in service. A sprain occurred when the ligaments stretch or tear. Presently, the Veteran presented at the VA examination with a diagnosis of degenerative disc disease of the cervical spine, which was not a correlation. The examiner commented that as we age the water and protein content of the cartilage of the body changes. This change resulted in a weaker, more fragile, and thin cartilage. Since both of the disc and the joints that stack the vertebrae (facet joints) are partly composed of cartilage, these areas were subject to wear and tear over time (degenerative changes). The gradual deterioration of the disc between the vertebrae was referred to as degenerative disc disease sometimes abbreviated DDD. While the examination report noted a diagnosis of degenerative joint disease, there was no indication that the degenerative joint disease was not related to service. The Board finds that the VA medical opinion is of limited probative value. The examiner appeared to be unaware that the Veteran was diagnosed with cervical strain more than once during her active service. The VA examiner also failed to address the treatment records from her private physical therapist showing that the Veteran's cervical spine problems were continuous since her service. Furthermore, the VA examiner does not address the VA treatment records from 2010 to 2014 showing the Veteran continued complaints and treatment for a chronic neck pain condition. VA treatment records show that the Veteran continued to complain of neck pain and report that she has had pain since her 2003 Humvee incident. In addition, the VA examiner does not reconcile his conclusion with the Veteran's reports of continuing symptoms since service. Moreover, the Veteran's husband provided testimony of the events that Veteran described. He testified that the Veteran was in an incident during her deployment and continued to have symptoms since service. In addition, the Veteran is competent to establish the continuity of her cervical spine disorder symptomatology since service. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Board also finds the Veteran to be credible. While some of the STRs following the Veteran's initial report of neck pain in 2003 indicated improvement in her cervical spine symptoms, they did not report that they had resolved completely. The Board also notes that despite the April 2009 VA examination's finding that the spine was normal; the Veteran has consistently reported that her cervical spine disorder symptoms have been present since service. Moreover, the Board finds it significant that the Veteran provided the same medical history for her private physical therapist, in post service VA treatment, and at the September 2017 videoconference. The Veteran filed her initial service connection claim a few days after she was released from service. The Veteran has continued to report a continuity of symptomatology since service. As outlined above the Board finds that the Veteran has competently and credibly reported a continuity of symptomatology since service in regard to her cervical spine condition. The VA examiner rendered a diagnosis of degenerative joint disease of the cervical spine. Degenerative joint disease is arthritis and is subject to presumptive service connection. .Applying the presumption regarding chronic diseases discussed above, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for degenerative joint disease of the cervical spine. (CONTINUED ON NEXT PAGE) Depressive Disorder The Veteran seeks service connection for her depressive disorder. In November 2011, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with depressive disorder. The Veteran reported the feelings of anxiety, which are similar to PTSD, but she did not meet the criteria for PTSD. The examiner indicated that the Veteran had feelings of depression related to her impaired functioning secondary to her neck pain. The examiner noted that the Veteran should be monitored to determine whether her feelings of depression and irritability would be better accounted for by a mood disorder. The examiner stated the diagnosis of major depressive disorder best accounts for the symptoms and that this disorder is related to the Veteran's neck pain. The examiner noted that the Veteran's condition caused an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally function satisfactorily, with normal routine behavior, self-care, and conversation. The examiner further commented that her problems with her day-to-day functioning were primarily due to her neck pain. She reported that on a good day her neck pain was a "7" and that on a bad day her neck pain was at a "10." The examiner commented that most of the Veteran's distress she currently experienced was due to her neck pain. The Board notes that there are no medical opinions to the contrary. Disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310. A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. Based on the above, the Board finds that the Veteran has a depressive disorder that is caused or secondary to her service-connected degenerative joint disease the cervical spine. Accordingly, the Veteran is entitled to service connection for depressive disorder on a secondary basis. 38 C.F.R. § 3.310. All doubt has been held in the Veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted the claim for service connection for degenerative disk of the cervical spine (previously claimed as cervicalgia) is reopened. Entitlement to service connection for degenerative joint disease of the cervical spine is granted. Entitlement to service connection for depressive disorder is granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs