Citation Nr: 18157114 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-59 064 DATE: December 11, 2018 ORDER 1. The appeal to reopen a claim of service connection for a neck disability is granted. REMANDED 2. Entitlement to service connection for a neck disability (on the merits) is remanded. FINDINGS OF FACT 1. A May 2013 rating decision denied the Veteran service connection for a neck disability, finding there was no evidence in service treatment records of a complaint, treatment, or diagnosis of a neck disability and no evidence linking a current cervical spine disability including osteoarthritis either to service or to the first post-service year. 2. Evidence received since the May 2013 rating decision pertains to injury during service and suggests there may be a link between the Veteran’s current cervical spine disability and an injury in service; relates to an unestablished fact necessary to substantiate the claim of service connection for a neck disability; and raises a possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a neck disability may be reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from August 1970 to April 1974. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 Department of Veterans Affairs (VA) rating decision. A new claim of entitlement to a total disability rating based on individual unemployability has been filed; as development and adjudication of the claim remain pending, it is not before the Board. 1. The appeal to reopen a claim of service connection for a neck disability is granted. A May 2013 rating decision denied the Veteran service connection for a neck disability, finding there was no evidence in service treatment records of a complaint, treatment, or diagnosis of a neck disability and no evidence linking a current cervical spine disability including osteoarthritis either to service or to the first post-service year. He did not appeal the May 2013 rating decision to the Board, or submit new and material evidence within the following year, and that decision became final. The claim may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. The record at the time of the May 2013 rating decision included service personnel and treatment records, VA outpatient records, and private medical records. Service personnel records show that the Veteran’s military occupational specialty was intelligence operations specialist, and that he had 362 days in “Indochina” from July 14, 1972 to July 10, 1973. Service treatment records (STRs) note lower back problems but do not mention injuries or problems related to the neck, including while stationed at Nakhon Phanom Royal Thai Air Force Base in Thailand from July 1972 to April 1973 (when treatment for various other ailments was documented) and on service separation examination in October 1973. Private medical records from 1988 indicate that the Veteran had undergone multiple neck surgeries, including in March 1988, November 1988, and May 2009. A January 1988 record from Dr. Siciliano refers to evaluation of neck and right arm pain after the Veteran sustained an injury at work jumping from a machine (he was a machinist) in September 1987 (a subsequent medical record in November 1989 notes that the injury occurred on October 16, 1987, when he stepped off a ladder and fell backwards, hitting his neck and head against an adjacent table); the impression was cervical radiculopathy, most likely at C6. VA medical records, dated from 2009, show ongoing treatment for osteoarthritis of the neck (upon initial presentation in July 2009, he was wearing a cervical collar from recent surgery at a private hospital in May 2009). A December 2009 VA outpatient record notes he reported being exposed to a loud blast in August 1970 that affected his hearing (no accompanying neck injury was alleged). A May 2011 VA outpatient record indicates that he reported a PTSD stressor involving a bus that exploded while he was waiting in line to board it; he said he was not seriously injured but was hit in the arm with a “piece of bone” from the man in front of him who died. A September 2012 VA outpatient record indicates in a pain assessment that the Veteran had chronic neck pain “since age 36.” “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). For the purpose of reopening a claim, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the May 2013 rating decision includes additional VA treatment records, private medical records, and statements/affidavits of the Veteran. VA records, which are dated from August 2001, show that upon initial presentation in August 2001 to establish care at VA, he indicated that he fell several years prior and injured his neck (he said he underwent cervical neurosurgery that left him with bilateral upper and lower extremity neuropathy and a spastic bladder). Subsequent records show his active problem list included osteoarthritis. A report of a July 2013 VA examination to evaluate PTSD lists three alleged stressors, none of which specifically notes injury to the Veteran (one stressor pertained to an attack on the Veteran and several other soldiers “by a civilian who planted a claymore mine on a motorbike that exploded and Veteran witnessed American soldiers killed or wounded”). An October 2015 VA outpatient record notes that the Veteran reported a history of falling from a helicopter, to which he attributed his spine injuries. Private records dated in 2010 and 2011 show cervical spine disease, including stenosis and postoperative changes. In an April 2018 affidavit, the Veteran expressed a belief that his “involvement in multiple combat scenarios while in service” resulted in his currently diagnosed cervical spine disability. He stated as his military occupational specialty was intelligence operations specialist, his duties were “highly confidential” and injuries to his neck were “not thoroughly documented.” He related that he injured his neck on three separate occasions during his service in Southeast Asia. He stated that upon arrival in Vietnam in August 1970 [c, service personnel records indicate he served overseas beginning in July 1972] he was thrown 75 feet when the local bus he was preparing to load with other soldiers exploded (he said the four American soldiers accompanying him died). He stated that in November 1972, as a courier for the CIA delivering sensitive information from Thailand to Laos, his helicopter was shot down and he was thrown out, landing on his back (he said he ran to a clearing and was rescued); he stated he reported his injury at an infirmary but received no treatment. He stated that on another courier trip a few weeks later, he fell from a helicopter while assisting other American soldiers climb aboard (he said they were being pursued by the enemy); he believed he fell 25 feet to the trees below and was unable to recall how he ended up safely back in the helicopter. Such statements by the Veteran, both in his affidavit and in VA medical record, are new evidence; they were not considered in May 2013 (when the Veteran did not offer any evidence regarding a specific neck injury in service). They are material, as they relate to incidents during service in which the Veteran alleges he sustained neck injuries. He is competent to provide such evidence, which pertains to an element necessary to substantiate the neck disability claim. For the purpose of reopening, it is presumed credible. Further, the evidence would trigger VA’s duty to assist with respect to providing an examination; thus, it is sufficient to reopen the claim. See Shade v. Shinseki, 24 Vet. App. 110, 120-21 (2010). In short, considered with the evidence of record in May 2013, this evidence constitutes new and material evidence sufficient to reopen the claim of service connection for a neck disability. REASONS FOR REMAND 2. Entitlement to service connection for a neck disability is remanded. Further development of the record is necessary to comply with VA’s duty to assist the Veteran, to include seeking private medical records pertaining to a neck injury in September 1987 or October 1987, the ensuing cervical spine surgeries in March 1988 and November 1988, and the more recent neck surgery in May 2009. Moreover, an examination to ascertain the nature and etiology of all current cervical spine disability is necessary. The matter is REMANDED for the following action: 1. Request the Veteran to submit the medical records pertaining to his neck injury at work in September 1987 or October 1987, the subsequent cervical spine surgeries he underwent in March 1988 and November 1988, and the more recent neck surgery in May 2009 (i.e., hospital and treating physician records), or submit authorization for the VA to seek to obtain the records on his behalf. If he chooses the latter, secure such records. All efforts to obtain the records should be documented in the file, and the Veteran should be apprised of the attempts to obtain the records. 2. Arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of all cervical spine disability. The claims file, to include this decision/remand, must be reviewed. The examiner should (a) identify each cervical spine disability (by diagnosis); and (b) identify the likely etiology for each cervical spine disability entity diagnosed. Is it at least as likely as not (a 50 percent or greater probability) that the disability is due to the claimed injuries during the Veteran’s service from August 1970 to April 1974? If a cervical spine disability is determined to not be related to the Veteran’s service, the examiner should identify the etiology for the disability considered to be the more. The examiner should also address the evidence documenting a post-service neck injury in 1987 followed by cervical spine surgeries in 1988, and the Veteran’s alleged in-service neck injuries (as described in his April 2018 affidavit) in the context of whether there is credible evidence of injury incurred during service with residuals that persisted thereafter. The examiner should note that the fact that service treatment records do not document a neck/cervical spine disability is not fatal to the claim and cannot be the sole basis for rejecting a possible nexus to service. The examiner must explain the rationale for all opinions, citing to relevant evidence, supporting factual data, and medical literature. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel