Citation Nr: 18145805 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-15 725 DATE: October 30, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a neck disorder is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for a neck disorder, to include as secondary to a shoulder disorder, is remanded. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches is remanded. Entitlement to an effective date prior to February 10, 2011 for the grant of service connection for migraine headaches is remanded. FINDING OF FACT An August 1990 rating decision denied service connection for neck pain; the Veteran did not timely appeal this denial; and no new and material evidence was submitted within the one-year appeal period following the issuance of that decision. Evidence received since the August 1990 rating decision is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim for service connection for a neck disorder. CONCLUSION OF LAW New and material evidence has been received to warrant reopening of the claim of entitlement to service connection for a neck disorder, to include as secondary to a service connected shoulder disorder, have been met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from March 1986 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a). The Board remanded the issue in June 2015 and April 2016, to afford the Veteran adequate VA examinations for his claimed disabilities. A claim for service connection for migraine headaches was also included in the remands, but the RO granted the claim in a May 2018 rating decision. Claims for increased rating and earlier effective date for the service connected migraine headaches have been raised by the record in a June 2018 notice of disagreement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). As no statement of the case (SOC) has been issued with respect to this claim, the Board must take jurisdiction of it for the limited purpose of remanding it to the AOJ to direct the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). 1. Whether new and material evidence has been presented to reopen the previously denied claim of entitlement to service connection for a neck disorder, to include as secondary to a service connected shoulder disorder. As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 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). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the language of 38 C.F.R. § 3.156 (a) creates a low threshold, and the Court has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason the claim was last denied but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The record shows that an August 1990 rating decision denied the Veteran's claim of service connection for neck pain. It denied the claim because the service records were “negative for chronic conditions.” The Veteran did not appeal the August 1990 rating decision. Moreover, additional evidence was not added to the claims file in the first year after the August 1990 rating decision. 38 C.F.R. § 3.156(b). Accordingly, the Board finds that the August 1990 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the final decision, VA received VA treatment records that diagnosed the Veteran with multilevel degenerative joint disease and degenerative disc disease of the cervical spine with spinal stenosis (neck disorder). See, e.g., VA Treatment Records dated May 2011, March 2013, April 2013, and July 2015. As this evidence is new and was not of record at the time of the prior denial, the Board finds that it was not previously considered by agency decision makers. The Board also finds that, while some symptoms related to a neck disorder were noted in his service records, this current diagnosis is not cumulative and redundant of evidence already of record. And, because a current disability is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)), the Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection for a neck disorder, and therefore raises a reasonable possibility of substantiating such a claim. See Shade, 24 Vet. App. At 117-18. Thus, the Board finds that this medical evidence constitutes new and material evidence and the claim is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. To this limited extent, the claim is granted. The underlying service connection claim is addressed in the remand below. REASONS FOR REMAND 1. Entitlement to service connection for a neck disorder, to include as secondary to shoulder disorder, is remanded. The Veteran contends that he is entitled to service connection for a neck disorder that incurred in service, to include from an April 1987 injury, with symptoms since service. In the alternative, he contends that his neck disorder is proximately due to, the result of, or aggravated beyond its natural progression by his service-connected degenerative joint disease of the left shoulder post-operative acromioclavicular separation with left rotator cuff tear (shoulder disorder). As indicated by the Veteran’s service treatment records (STRs), the Veteran fell during a syncopal episode and sustained a laceration of the scalp (head injury) in April of 1987. See STR dated February 1990. This head injury produced a neck strain. Id. The Veteran also sustained a shoulder injury while swimming in 1987 producing the service-connected shoulder disorder. Id. The Veteran has consistently reported that he has had chronic neck pain since service. See, e.g., Notice of Disagreement dated June 2011; Form 9 dated April 2013; and Medical Treatment Record dated May 2011. The Veteran also submitted a statement from his wife regarding his complaints of neck pain since service. See Lay Statement dated May 2011. In a post-service VA treatment record from May 1990, the Veteran complained of pain with flexion of his neck. See VA Treatment Record dated February 1990. In an August 1994 private treatment record following a car accident, the Veteran complained of pain in the left shoulder and radiating into the neck. See Medical Treatment Record dated May 1995. In December 2010, the Veteran again reported chronic pain in his neck. See VA Treatment Record dated April 2013. He received x-rays and a diagnosis of degenerative, or arthritis, type changes in the bones of the lower neck. Id. An MRI performed in April 2011 revealed degenerative disc disease in the Veteran’s cervical spine. Id. VA treatment records after 2010 show continued and consistent documentation of neck pain, limitations on range of motion, treatment, and prescriptions for management of neck pain. The Veteran received VA examinations in May 2011, March 2015, and April 2017, which included the Veteran’s neck disorder, among other disability claims. As noted above, the Board remanded this issue in June 2015 and April 2016, to afford the Veteran adequate VA examinations. Regarding the multitude of VA examinations, the Board notes that once the VA undertakes the effort to provide examination when developing a service connection claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303,311 (2007). In the April 2016 remand, the Board specifically instructed the examiner to note and address the Veteran’s post-service complaint of pain with flexion of his neck as noted in a May 1990 VA treatment record, as it relates to the Veteran’s reports of continuity of symptomatology since service. The corresponding VA Examination conducted in April 2017 failed to address the May 1990 VA treatment record and erroneously stated that there was “no documentation of neck problems since 1985 until 1995.” In providing a negative nexus opinion and rationale, the examiner relied on this factually inaccurate basis. Thus, the Board finds that a new VA medical opinion is warranted. While the Board regrets the additional delay, the Veteran’s remaining claim of entitlement to service connection for a neck disorder must be remanded for additional development. 2. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches is remanded. The Veteran’s claim of service connection for migraine headaches was granted in a May 2018 rating decision. In June 2018, the Veteran filed a timely notice of disagreement with the initial evaluation of this disability. To date a SOC has yet to be issued. As such, the Board must remand that claim for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). 3. Entitlement to an effective date prior to February 10, 2011 for the grant of service connection for migraine headaches is remanded. The Veteran’s claim of service connection for migraine headaches was granted in a May 2018 rating decision. In June 2018, the Veteran filed a timely notice of disagreement with the effective date of this disability. To date a SOC has yet to be issued. As such, the Board must remand that claim for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Send the Veteran and his representative a SOC that addresses the issues of increased rating and earlier effective date for his service-connected migraine headaches. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 2. Obtain an addendum opinion from an appropriate clinician to provide a clarifying opinion as to the nature and etiology of the Veteran’s neck disorder. Specifically, the examiner should opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his head injury in service. The examiner must also provide an opinion as to whether it is a least as likely as not that any diagnosed neck disorder is (a) related to, (b) proximately due to, or (c) aggravated beyond its natural progression by the Veteran’s left shoulder disability. The examiner is to provide a review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran’s neck disorder and provide a rationale for all conclusions reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. A complete rationale is required for all opinions reached. The examiner should note that the Veteran had a post-service complaint of pain with flexion of his neck as noted in a May 1990 VA treatment record, and of pain in the left shoulder and radiating into the neck, as noted in an August 1994 private treatment record following a motor vehicle accident. The examiner is advised that they must discuss the Veteran’s self-reported history. The examiner is notified that the Veteran is competent to report symptomatology observable by a layperson. The examiner is advised that the absence of corroborating clinical records may not be the determinative factor, and the examiner should discuss the Veteran’s reports of continuity of symptomatology since service. (Continued on the next page)   3. Then, readjudicate the Veteran's claim for service connection for his neck disorder. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental SOC. Allow an appropriate period of time for response. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. E. VanValkenburg, Associate Counsel