Citation Nr: 1808445 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-39 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for a neck disability. 2. Entitlement to service connection for a neck disability to include degenerative arthritis and radiculopathy of the cervical spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from January 1956 to October 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). A review of the record reveals the following procedural history. The Veteran filed a claim for entitlement to service connection for a neck injury in October 2005. However, because the Veteran had previously filed a claim in May 1963 for entitlement to service connection for a back condition arising from the same incident of falling off a truck in service, and this claim was denied in a September 1963 rating decision, the RO mistakenly adjudicated the issue of new and material evidence in support of service connection for a back condition in a May 2006 rating decision. At the time of the September 1963 rating decision the Veteran submitted supportive medical evidence regarding treatment for shoulder and low back pain that also contained complaints of neck pain. The Veteran re-filed for service connection for a neck injury in June 2010, which was adjudicated in an October 2010 rating decision in which the RO noted that it had mistakenly adjudicated the Veteran's October 2005 neck claim as a back claim, and adjudicated entitlement to service connection for a neck injury without any requirement for new and material evidence. As the neck and back are distinct parts of the musculoskeletal system, the Board will consider the October 2010 rating decision as the earliest adjudication of the Veteran's claim of entitlement to service connection for a neck condition. The issue of entitlement to service connection for a neck disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An October 2010 rating decision denied service connection for a neck disability; the Veteran did not perfect an appeal. 2. Evidence submitted since the October 2010 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's neck claim, and therefore raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2010 rating decision which denied service connection for a neck disability is final. 38 U.S.C. § 7105 (2012). 2. New and material evidence has been received since the October 2010 rating decision and the claim of entitlement to service connection for a neck disability is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2017). Given the Board's favorable disposition of the petition to reopen the claim for service connection for a neck disability, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. II. New and Material Evidence Petition In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. However, pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In such a case, the claim is reopened and the former disposition of that case is reviewed de novo and readjudicated. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. Here, the October 2010 decision became final because the Veteran did not submit a timely appeal and nor did he submit additional evidence in support of his claim prior to the expiration of the appeal period. New evidence is defined as 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. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Since the time of the October 2010 rating decision the Veteran has submitted an August 2010 treatment record from a chiropractor referring to 1968 radiographic evidence of mild cervical kyphosis with slight anterior superior spurring at the C5-6 vertebra as well as a 1999 cervical magnetic resonance imaging (MRI) results demonstrating severe degenerative disc disease with discogenic spondylosis and HNP at C6-7 and degenerative disc disease at C7-T1. The examiner interviewed the Veteran about the onset of his neck pain, and the Veteran reported that during active duty service in December 1956 he was thrown off of a deuce and a half truck, falling 7 feet of the truck onto his head; the ground was frozen at the time. The Veteran's chiropractor indicated that the Veteran's current symptoms are due to his degenerative disc disease, that the Veteran's 1963 radiographic films showed evidence of injury at the C56, and that the Veteran's 1999 X-ray results demonstrated sequela of the injury demonstrated on the 1968 radiographic films, which had progressed to severe degenerative disc disease. However, the Veteran's chiropractor explained that because there were no radiographic films taken immediately after the 1956 fall, he could not state with certainty that the 1963 radiographic findings were due to the trauma in 1956, but that the Veteran had reported neck pain after falling and there was medical evidence of cervical injury. Moreover, the Veteran also submitted a February 1970 letter from a treating physician indicating that the Veteran had electromyography (EMG) test results demonstrating nerve injury to the neck and that these results lends strength to findings of injury to the neck and current remote injuries therefrom. This evidence was not previously considered at the time of the October 2010 rating decision, and raises a reasonable probability of substantiating the claim. Accordingly, the Board finds that reopening of the Veteran's claim of entitlement to service connection for a neck disability is warranted. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). ORDER The petition to reopen the claim of entitlement to service connection for a neck disability is granted. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. First, the Board notes that as discussed, the Veteran has submitted private chiropractor records that discuss 1963 and 1999 radiographic reports that document neck trauma and relate his current cervical spine condition to the trauma demonstrated on the 1963 radiographic report. Additionally, he has also submitted February 1970 records from a private treating physician that discuss medical evidence of a nerve injury of the neck. Also, the Veteran submitted VA treatment records that discuss the Veteran's past medical history of cervical radiculopathy and contain radiographic findings of degenerative joint disease of the cervical spine. Moreover, the Veteran submitted a lay statement explaining that when he separated from active duty service, he was in a rush to get home because his father's health was failing and did not report his neck issues at that time. While the foregoing demonstrates evidence in support of the first and second elements of service connection, there is presently insufficient evidence of medical nexus. Accordingly the Veteran's claim must be remanded for procurement of an etiology opinion. Although the Veteran's dental treatment records and induction and separation physical examination reports are of record, it appears that the Veteran's service treatment records have either been lost or damaged. Some of the Veteran's personnel records contain evidence of fire damage. Previous 1963 requests to procure his service treatment records from Korea, which is where the Veteran reports he fell off the truck leading to his neck injury and was treated with morphine pills by medics, did not yield any records, however the requests were made in relation to back and shoulder claims, not a neck claim. The Veteran also submitted a lay statement explaining that his military occupational specialty (MOS) was changed to working in the tool room due to his injury, and that he was advised to sleep on a board to help with his symptoms. The Board notes that VA has a heightened duty to consider the "benefit of the doubt" doctrine when service treatment records are missing or destroyed, as is the case here. See generally Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v, Lewinski, 1 Vet. App. 365, 367 (1991). Finally, the Veteran also submitted a release authorization in August 2013 for Dr. S. Q. from 1996 onwards for neck and arm treatment. There is no indication that any records for Dr. S. Q. were requested by the RO. Accordingly, on remand the RO should attempt to procure these records and provide the Veteran with an opportunity to submit a release authorization for any other outstanding treatment records from his chiropractor or other sources. He should also be given the opportunity to submit the 1963 and1999 radiographic and 1970 EMG results discussed above, if he has those records in his possession. Finally, as the Veteran is currently in receipt of VA treatment for chronic pain of the neck and back, on remand any outstanding VA treatment records should be procured. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's outstanding VA treatment records relevant to the claim being remanded and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Procure the Veteran's outstanding private treatment records from Dr. S. Q. for which he has already submitted a release authorization. If a new release authorization is required, request another release authorization from the Veteran. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Contact the Veteran and give him the opportunity to submit any private treatment records that may be within his possession, to include the 1963 radiographic results, 1970 EMG results, and 1999 MRI results. Additionally, provide the Veteran with a release form for any outstanding private medical records pertinent to his claimed neck disability to include cervical radiculopathy and degenerative joint disease. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current cervical spine disability after the development in (1)-(3) has been completed. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. The examiner should diagnose any current cervical spine disabilities and address any diagnoses already reflected in the record to include cervical radiculopathy and degenerative joint disease, and then provide the following opinion: i. Whether it is at least as likely as not (50 percent or greater probability) the Veteran's diagnosed neck (cervical spine) condition or conditions: (1) began during active service; (2) is/are related to any in-service event or injury; or (3), manifested within one year of active duty service. The examiner should discuss the Veteran's report of a head first fall off of a truck and 1963, 1979, and 1999 records with regard to his neck symptoms and diagnoses. The examiner should also discuss the August 2010 findings by the Veteran's chiropractor. With regard to the Veteran's service treatment records, the examiner is advised that there is evidence that some of the Veteran's records have been lost or destroyed and that any etiology opinion rendered should address relevant lay evidence in support of in-service incurrence. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 5. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs