Citation Nr: 1806068	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  14-08 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for stiff neck (also claimed as muscle sprain and spasm, pain and cracking in the neck area).  

2.  Entitlement to service connection for stiff neck (also claimed as muscle sprain and spasm, pain and cracking in the neck area).  

3.  Entitlement to an increased rating for left lower extremity sciatica, currently rated as 10 percent disabling.


REPRESENTATION

Veteran represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

A. Daniels, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1979 to August 1982 and from March 1983 to July 2000.  

This case comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The issues of entitlement to service connection for stiff neck and entitlement to an increased rating for left lower extremity sciatica, currently rated as 10 percent disabling, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Service connection for stiff neck was denied in a February 2001 rating decision in part on the basis that there was no chronic disease found.

2.  The Veteran did not file a notice of disagreement for the February 2001 rating decision, and that decision became final.  

3.  Evidence received since the February 2001 rating decision relates to unestablished facts necessary to substantiate the service connection claim for stiff neck.  



CONCLUSION OF LAW

New and material evidence has been received, and the Veteran's claim for service connection for stiff neck (also claimed as muscle sprain and spasm, pain and cracking in the neck area) is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

New and Material Evidence 

Service connection for stiff neck was initially denied in a February 2001 rating decision.  The RO found that there was no treatment or diagnosis of a stiff neck in the Veteran's service medical records.  As there was no evidence of a chronic condition involving the Veteran's neck, entitlement to service connection was denied.

A claim which has been finally denied may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c) (2012).  The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  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.  38 C.F.R. § 3.156(a) (2017).  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).

The evidence received since the February 2001 rating decision includes private treatment records indicating that the Veteran has a current diagnosis of mild multilevel discogenic degenerative changes of the cervical spine.

The evidence is new, as it was not previously considered, and material, as it pertains to unestablished facts of the claims, i.e., evidence of a current neck disability; therefore, raising a reasonable possibility of substantiating the claim.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  New and material evidence having been submitted, reopening of the previously denied claim is appropriate.

However, adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received.  For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim.


ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for stiff neck (also claimed as muscle sprain and spasm, pain and cracking in the neck area) is reopened; to this extent only, the Veteran's appeal is granted. 


REMAND

Stiff Neck

As the Veteran's medical records establish a current diagnosis of mild multilevel discogenic degenerative changes of the cervical spine, and there is an indication, through assertions of the Veteran and his spouse, that the disability may be related to an in-service vehicle accident, the Board finds that a medical examination with an opinion is necessary to decide the claim.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006).  Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of his stiff neck.

Left Lower Extremity Sciatica

The Veteran was afforded a VA examination for his peripheral nerves in September 2012, and additional private treatment records from September 2013 and October 2013 were submitted.  Due to the more than five years since the prior VA examination, and the additional relevant evidence received, the Board finds that there is a potential worsening of the Veteran's left lower extremity sciatica.  Thus, the Veteran should be afforded a new VA examination to assess the current nature and severity of his left lower extremity sciatica.  See Snuffer v. Gober, 10 Vet. App. 400 (1997).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the current severity of his left lower extremity sciatica.  The claims file must be made available to and reviewed by the examiner, and the examiner must specify in the examination report that these records have been reviewed.  

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of his stiff neck.  The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. 

The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran's stiff neck had its onset in service or is otherwise the result of an incident in service.

The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

3.  Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veterans claim for an increased rating for left lower extremity sciatica and service connection for stiff neck.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

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 J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs