Citation Nr: 18140019 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-39 640 DATE: October 2, 2018 ORDER New and material evidence having been received, the claims of entitlement to service connection for cervical spinal stenosis with right foraminal stenosis with right sided radiculopathy and limitation of range of motion (a cervical spine disability) and right shoulder/arm pain are reopened. Entitlement to service connection for compensation purposes for a cervical spine disability is denied. Entitlement to service connection for compensation purposes for right shoulder/arm pain, to include as secondary to a cervical spine disability, is denied. FINDINGS OF FACT 1. Evidence received since the October 2007 rating decision that denied the claims of service connection for a cervical spine disability and right shoulder/arm pain is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the appellant’s claims. 2. The appellant’s service for the period from November 13, 2003, to December 6, 2003, is dishonorable for Department of Veterans Affairs (VA) purposes. 3. A cervical spine disability was not incurred in or aggravated by an injury or disease during a period of active service from June 1977 to June 1981, and is not shown to be otherwise related to that period of service. 4. Right shoulder/arm pain was not incurred in or aggravated by an injury or disease during a period of active service from June 1977 to June 1981, and are not shown to be otherwise related to that period of service or a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of entitlement to service connection for a cervical spine disability and right shoulder/arm pain. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. 2. The criteria for establishing service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.12(a), 3.303, 3.307, 3.309. 3. The criteria for establishing service connection for a right shoulder/arm pain are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.12(a), 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from June 1977 to June 1981, and on active duty for training (ACDUTRA) from November 13, 2003, to December 6, 2003. The period of ACDUTRA in 2003 has been characterized as dishonorable service for purposes of VA compensation benefits. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision of the VA Regional Office (RO). The appellant appeared at a Board hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing is of record. Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. Claims to Reopen The appellant’s claims for service connection for a cervical spine disability and right shoulder/arm pain were denied by the RO in October 2007. The appellant was provided notice of the October 2007 decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2007). The appellant filed an application to reopen his previously denied claims in February 2011. While the RO did reopen the claims in an April 2013 rating decision, it continued the previous denials of service connection, finding that the appellant’s disabilities were not incurred in or otherwise caused by his military service. Regardless of the RO’s action in reopening the claims, the Board itself must decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. 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. New and material evidence can be 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board finds that the evidence received since the previous, final decision includes evidence that is both new and material to the appellant’s claims. See 38 C.F.R. § 3.156. For example, this evidence includes additional VA treatment records, several additional lay statements, the appellant’s May 2017 hearing testimony, and a February 2015 etiological opinion from his VA physician. The new evidence raises a reasonable possibility of substantiating the claim as it addresses reasons for the previous denials, in particular, a nexus to service. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus, 3 Vet. App. at 513. Accordingly, the appellant’s claims for entitlement to service connection for a cervical spine disability and right shoulder/arm pain are reopened and, to that extent only, the appeals are granted. Service Connection On November 10, 2003, the appellant was ordered to a period of ACDUTRA from November 13, 2003, to December 6, 2003. He asserts that he injured his neck during mobilization exercises which resulted in current cervical spine and right shoulder/arm disabilities for which he is claiming service connection. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. §§ 101(2), 101(18), 5303; 38 C.F.R. § 3.12(a). In an administrative decision issued in September 2006, the RO confirmed that the appellant was ordered to ACDUTRA for approximately three weeks in 2003, and that during that time he tested positive for cocaine use. As such, the RO determined that the appellant’s service from November 13, 2003, to December 6, 2003, was dishonorable for VA purposes. The threshold requirement for eligibility for service connection has not been met for the period of service from November 13, 2003, to December 6, 2003. Entitlement to service connection for a cervical spine disability and associated arm and shoulder pain may nonetheless be warranted based on other periods of active service. The appellant was discharged from his first period of active service from June 1977 to June 1981 under honorable conditions. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In the present case, the record reflects a January 2006 VA examiner’s diagnoses of cervical spinal stenosis with right foraminal stenosis, as well as radiculopathy and limitation of range of motion of the right upper extremity associated with his cervical spine disability. However, the record does not reflect, nor does the appellant assert, that a cervical spine or right shoulder/arm disability was caused or aggravated by a period of service other than the period of ACDUTRA which VA has found to have been performed under dishonorable conditions. The appellant’s service treatment records, including during his June 1977 to June 1981 period of active duty service, as well as a reenlistment examination and report of medical history in June 2002, are negative for treatment or complaints suggestive of a cervical spine or a right shoulder/arm disability until his treatment for neck and right upper extremity pain in November and December 2003 during the period of non-qualifying service. As the record does not reflect an in-service neck injury or disease during any qualifying service period, or that arthritis manifested to compensable degree within one year of such service, service connection is not warranted on either a direct or presumptive basis for the appellant’s cervical spine and right upper extremity disabilities. 38 C.F.R. §§ 3.303, 3.307, 3.309. In addition, as service connection is not warranted for the appellant’s cervical spine disability, service connection for a right shoulder/arm pain on a secondary basis must fail as a matter of law. 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board acknowledges the positive etiological opinion of the January 2006 VA examiner who opined that the appellant’s cervical spine disability and associated right upper extremity radiculopathy are as likely as not related to the in-service neck injury sustained during his period of ACDUTRA from November 2003 to August 2004. Indeed, in awarding the appellant service connection for treatment purposes only for these disabilities under Chapter 17 in September 2006, VA has acknowledged and agreed with the examiner’s opinion. However, the appellant was discharged under dishonorable conditions for this period of ACDUTRA, and service connection for compensation purposes cannot be awarded. See 38 C.F.R. § 3.12(a). The Board also acknowledges the February 2016 positive opinion of the appellant’s VA physician, Dr. J.S, who opined that his “many sources of pain seem to have started in the military service.” There is no indication, however, that Dr. J.S reviewed the appellant’s service treatment records prior to providing this statement and the opinion is without any rationale. His opinion, therefore, is given no probative weight. Again, service treatment records do not contain complaints, treatment, or diagnosis for the disabilities for which the appellant is seeking service connection until his period of ACDUTRA for which he is barred from VA disability compensation benefits. The appellant is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Board acknowledges his lay statements regarding the etiology of his cervical spine and associated right upper extremity radiculopathy. However, he is not competent to opine on the etiology of these disabilities, and his statements are therefore afforded no probative weight. In any event, the appellant’s lay statements date the onset of symptoms to his non-qualifying periods of service. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 55-57. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel