Citation Nr: 18151957 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-06 068 DATE: November 20, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a cervical spine disorder is granted. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for radiculopathy of the left upper extremity, to include as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to a cervical spine disorder, is remanded. Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to an increased disability evaluation for post-laminectomy syndrome of the lumbar spine in excess of 20 percent prior to October 28, 2014, and in excess of 40 percent thereafter, is remanded. Entitlement to a compensable disability evaluation for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The RO denied service connection for a cervical spine disorder in October 2008. The veteran did not perfect his appeal nor was evidence received within the one-year period which would have allowed the claim to remain open. Hence, the decision became final. 2. Evidence received since the denial of service connection for a cervical spine disorder raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2008 rating determination denying service connection for a cervical spine disorder became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a cervical spine disorder loss has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 2005 to November 2005 and from June 2006 to December 2006. As to the issue of service connection for a cervical spine disorder, the Board notes that the Regional Office reopened the previously denied claim and denied service connection for a cervical spine disorder. The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any action which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. Therefore, the Board has listed the issue as such on the title page of this decision. New and Material-Cervical Spine New evidence means existing evidence not previously submitted to agency decisionmakers. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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 why 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 the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b). Id. In its October 2008 rating determination, the RO denied service connection for a cervical spine disorder as neither incurred in nor caused by service. The RO noted that it had requested an examination to help make a decision regarding the Veteran’s claim for this condition, but received notification from the VA Medical Center that he did not report for the examination or complete all the necessary testing. The RO noted that regulations provided that when a claimant failed to report for an examination scheduled in conjunction with an original compensation claim, the claim was to be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim was to be denied. The RO noted that evidence expected from this examination which might have been material to the outcome of the claim could not be considered, therefore, the claim for a cervical spine disorder was denied. The Veteran was notified of this denial that same month and did not appeal nor was evidence received which would have allowed the claim to remain open. Evidence available at that time included the Veteran’s service treatment records, his application for compensation, and notice of his failure to report for a requested examination. Evidence received subsequent to the October 2008 denial includes statements and testimony from the Veteran, additional treatment records showing current cervical spine disorders, and a February 2012 VA medical opinion concerning the cervical spine. The evidence added provides more in-depth detail from the Veteran as to the onset of his cervical spine problems and their relationship to his period of service. The post-service treatment records provide a more detailed history of the onset of the Veteran’s cervical spine disorder. While the VA medical opinion is negative in nature, it does not appear that the examiner had the benefit of the additional post-service records for review prior to rendering his opinion, which provide evidence that may be considered favorable towards the Veteran’s contentions when viewed in conjunction with the Veteran’s service treatment records. The newly received evidence relates to previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The issue of service connection for a cervical spine disorder will now be addressed in the remand portion of this decision. REASONS FOR REMAND As it relates to all remanded issues, the Board notes that there have been difficulties in scheduling the Veteran for VA examinations, in that the Veteran has moved to various addresses and in that the RO has on occasion sent requests for VA examinations to addresses which were not in use and/or not the most recent address of record. In order to ensure due process, the Board will schedule the Veteran for VA examinations which will be beneficial in rendering appropriate decisions for the issues on appeal. If the Veteran fails to show for his scheduled VA examinations, without good cause, VA will decide his claims in accordance with 38 C.F.R. § 3.655. Cervical Spine As noted above, the Veteran has maintained that his current cervical spine disorders are related to his period of service, either as a direct result of actions performed in service or as aggravated by his periods of service. The Board notes that treatment records associated with the file reveal that the Veteran has reported having a history of cervical spine problems prior to his first period of service, with the history dating back to March-April 2005. The Board further observes that the Veteran underwent a cervical laminectomy in April 2006, between his periods of active service. Service treatment records for the Veteran’s second period of active service reveal that in November 2006, a Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty Form for military duties was issued for November 18, 2006 to November 30, 2006 for his cervical spine problems, with additional Forms being issued in December 2006, January 2007, and February 2008. The Board further observes that on his December 2006 Post-Deployment Health Assessment, the Veteran checked the “yes” boxes when asked if he had back pain and numbness and/or tingling in his hands and feet. In the February 2012 VA opinion, the examiner indicated that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that there was no objective evidence in the Veteran's service treatment records that his cervical spine injury occurred during his first tour of active duty (6/13/2005 -11/18/2005). He stated that there was ample evidence that in the interim between the end of his first tour and the beginning of his secondary tour on June 29, 2006 that his cervical spine disease was manifest, as evidenced by an MRI dated March 13, 2006 which showed a large C6-7 disc herniation with neural foraminal impingement on the left, accounting for his left arm pain. He observed that in April 2006, the Veteran underwent a cervical laminectomy, resulting in total relief of the left arm and shoulder pain. The examiner stated he was considered fit for duty at the time of his second tour commencing on June 29, 2006 and terminating on December 4, 2006. He indicated that the only entry in his service treatment records during the second tour relative to the neck was in September 2006, with the notation simply stating, "lower back and neck pain." The neck pain was not further elaborated upon. He reported that the Veteran, by his own admission, stated that since his surgery he had had no further left arm or shoulder pain right up to the present time. The only residual effect he had was mild numbness of the left index and middle fingers, more likely than not related to his surgery. There was absolutely no indication that his second tour of duty permanently aggravated his cervical disc disease beyond the natural progression of the disease. While the opinion is negative, as noted above, the Veteran did report having problems on more than one occasion during his second period of service and was also issued a Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty during his second period of active duty and for periods immediately following his second period of active duty. Given the foregoing, the Veteran should be afforded an additional VA examination, with an additional opinion being rendered Right and Left Upper Extremity Radiculopathy As it relates to the claims of service connection for right and left upper extremity radiculopathy, the Board notes that these issues are inextricably intertwined with the issue of service connection for a cervical spine disorder. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). To date, the Veteran has not been afforded a VA examination to determine the etiology of any current right and/or left upper extremity radiculopathy. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As such, a VA examination is warranted. Psychiatric Disorder, to include Posttraumatic Stress Disorder. also claimed as Secondary to Service-Connected Disabilities As it relates to the claim of service connection for a psychiatric disorder, to include PTSD, also claimed as secondary to service-connected disabilities, the Board notes that while an attempt was made to schedule the Veteran for a VA examination, it appears that the notice was sent to the wrong address. At his April 2018 videoconference hearing before the undersigned, the Veteran expressed his willingness to report for an examination. His representative requested that he be afforded a VA examination. Given the foregoing, the Veteran should be afforded a VA examination to determine the etiology of any current psychiatric disorder and its relationship, if any, to his periods of active service and/or his service connected disabilities. Lumbar Spine and Left Lower Extremity Radiculopathy As it relates to the lumbar spine disability, the Board notes that the last VA examination afforded the Veteran occurred in October 2014. The Board notes that United States Court of Appeals for Veterans' Claims (Court) has held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 21 Vet. App. 158 (2016). Specifically, the Court concluded that the final sentence of 38 C.F.R. § 4.59 required testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. A review of the evidence of record reveals that the prior examinations fail to fully comply with the Court's holding in Correia. As such, remand is required to obtain an adequate examination regarding the Veteran's service-connected low back disorder. See Id. As it relates to the left lower extremity radiculopathy as secondary to the service-connected low back disorder, the Board notes that the last comprehensive VA examination afforded the Veteran also occurred in October 2014. As the matter is being remanded for a back examination, an additional VA examination to determine the severity of his left lower extremity radiculopathy is also in order. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current cervical spine disorder and any right and left upper extremity radiculopathy. All indicated tests and studies should be performed and all findings should be reported in detail. The entire record should be made available to the examiner. As it relates to the cervical spine disorder the examiner is requested to render the following opinions: (a) Did the Veteran's current cervical spine disorder clearly and unmistakably (obvious, manifest, undebatable) pre-exist either of his periods of active service? (b) If it is your opinion that the cervical spine disorder clearly and unmistakably preexisted either period of active service, is there clear and unmistakable evidence that the cervical spine disorder was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? When addressing these issues the examiner must note all findings relating to the cervical spine in either period of active service, to include, but no limited to the Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty Form for military duties issued for November 18, 2006 to November 30, 2006 for his cervical spine problems, along with additional forms being issued in December 2006, January 2007, and February 2008, as well as the December 2006 Post-Deployment Health Assessment, wherein the Veteran checked the “yes” boxes when asked if he had back pain and numbness and/or tingling in his hands and feet. (c) If you conclude that the cervical spine disorder did not clearly and unmistakably pre-exist either period of service, is it at least as likely as not (probability 50 percent of more) that any current cervical spine disorder had its onset in service? As to the right and left upper extremity radiculopathy, if present, the examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current right and/or left upper extremity radiculopathy is etiologically related to the Veteran's period of active service? If not, is it as likely as not (50 percent probability or greater) that any current right and/or left upper extremity radiculopathy is caused by any cervical spine disorder? If not, is it at least as likely as not (50 percent probability or greater) that any current right and/or left upper extremity radiculopathy is aggravated by and cervical spine disorder? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each opinion that is rendered. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current psychiatric disorder, to include PTSD. All indicated tests and studies should be performed and all findings should be reported in detail. The entire record should be made available to the examiner. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current psychiatric disorder, to include PTSD, is etiologically related to the Veteran's periods of active service? If not, is it as likely as not (50 percent probability or greater) that any current psychiatric disorder, to include PTSD, is caused by any service-connected disorder? If not, is it at least as likely as not (50 percent probability or greater) that any current psychiatric disorder, to include PTSD, is aggravated by current service-connected disorder? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. 4. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his low back disability and left lower extremity radiculopathy. The entire record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the file has been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's low back disability. In this regard, the examiner must record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court's precedential decision in Correia, the examiner must test and record range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if applicable, and report all readings. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If range of motion is not possible, the examiner should indicate whether the Veteran has unfavorable ankyloses of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. As it relates to the left lower extremity radiculopathy, the examiner should indicate which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should specifically indicate whether the Veteran has bowel or bladder impairment as a result of his back disability, and, if so, describe the current severity of any such neurological manifestations. The examiner should also state whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. 5. Tell the Veteran that if he fails to show for his scheduled VA examinations, without good cause, VA will decide his claims in accordance with 38 C.F.R. § 3.655. 6. Ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.Kelly, Counsel