Citation Nr: 1808537 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-18 804A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. 3. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a neck disability. 4. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Connor, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the undersigned Veterans Law Judge during an October 2017 video hearing conference. A transcript of that hearing has been associated with the claims file. In December 2017, the Veteran requested a "3 week extension" to submit additional evidence. This request was granted, and the record was held open through January 17, 2018. No additional evidence was not received by the Board. Accordingly, appellate consideration may proceed. The issues of entitlement to service connection for a low back disability and a neck disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed rating decision dated in June 1999, the RO declined to reopen the claims for entitlement to service connection for a low back injury and cervical spine disorder. 2. Evidence received since the June 1999 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claims for entitlement to back and neck disabilities, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The June 1999 decision that disallowed the reopening of the claims for service connection for low back and neck disabilities is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104 , 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for a low back and neck disabilities. 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The United States Court of Appeals for Veterans Claims held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the other evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. The claim for entitlement to service connection for a low back strain was initially denied by the RO in a July 1983 rating decision. The RO essentially determined that the there was no evidence of a back disability on the Veteran's separation examination. The claim was reconsidered in an August 1983 decision, and the denial was confirmed. Thereafter, in a February 1992 decision, the RO denied service connection for a low back strain because the Veteran's in-service back strain was an acute episode that had no residual and subsequent episodes of back pain were not shown to be part of a chronic disorder. In June 1993, the Board remanded the issue for RO adjudication. In August 1993, the RO found that new and material evidence had been presented to reopen the July 1983 denial of service connection for a back disability but denied service connection based on a finding that the back strain in service was transitory and left no permanent residuals. Additionally, the decision denied service connection for a cervical spine disorder based on a finding that the cervical strain in service was acute and transitory and there was no current disability. In August 1997, the Board reopened the Veteran's claims for entitlement to service connection for a low back injury and a cervical spine disorder but denied service connection for each. The Board found no evidence of a nexus (etiological relationship) between the current back strain and neck pain and the Veteran's in-service treatment for back and neck strains. In January 1999, the Veteran filed a request to reopen his claims for service for low back and neck disabilities. He said he understood the need to submit new and material evidence and that such evidence was forthcoming. A letter was provided to him in April 1999, which provided examples of the types of evidence he could submit. No addition evidence was received. Thus, in June 1999, the RO denied reopening the Veteran's claims as he failed to provide new and material evidence. After being given notice of the June 1999 decision, the Veteran did not appeal and there is no indication that new and material evidence was received within a year of this decision. The decision, therefore, became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The evidence received since the June 1999 rating decision includes a February 2013 statement from his treating chiropractor indicating that the Veteran states he has "chronic lower back pain...first relating to active duty military injury to lower back - neck which has become progressively worse over the years." The Veteran also submitted statements from his brother and spouse indicating that the Veteran has experienced ongoing back and neck pain since service. Finally, during the course of his personal hearing, the Veteran provided a detailed explanation of the stresses of strain of his active service, to include the micro-traumas he experienced from parachute jumps. He pointed to a long record of care for his low back and neck problems. This evidence is new evidence because it was not previously before decisionmakers. It is also material because when considered with the other evidence, it raises a reasonable possibility of substantiating the claims. Further, for purposes of this decision, the credibility of this evidence is presumed. As such, the evidence added to the record since the June 1999 rating decision suggests that there is continuity of the Veteran's symptomatology, currently diagnosed as degenerative changes of the back and neck, as confirmed by the February 2013 statement from the Veteran's chiropractor. Therefore, the Board finds that new and material evidence has been received sufficient to reopen the Veteran's claims for entitlement to service connection for a low back disability and a neck disability. ORDER New and material evidence having been received, the claim for entitlement to service connection for a low back disability is reopened; the claim is granted to this extent only. New and material evidence having been received, the claim for entitlement to service connection for a neck disability is reopened; the claim is granted to this extent only. REMAND The Veteran attributes his current back and neck disabilities to his period of active service. Specifically, he noted pain after lifting furniture off of a truck and continued pain related to his service as a paratrooper. His service treatment records show treatment in February 1983 for a strained back muscle after lifting weights on his job and treatment in August and September 1980 for neck complaints from his parachute harness. Additionally, the Veteran reports ongoing chiropractic care since service discharge for his back and neck disabilities and submitted statements from his brother and spouse confirming such. As noted above, the Veteran has been diagnosed with degenerative changes of the cervical and lumbar spine, which, as noted by the Veteran's representative were diagnosed via MRI studies. The February 2013 statement from the Veteran's chiropractor suggests continuity of symptomatology of the Veteran's claimed back and neck disabilities since service discharge. The RO obtained an opinion in May 2014 to address the etiology of the Veteran's claimed back and neck disabilities. The VA physician provided a negative nexus opinion, citing to a lack of "chronic ongoing care" for a back condition following military service and a lack of diagnosis of a chronic condition until over 10 years after discharge. The Board finds this opinion is inadequate as it failed to address the Veteran's lay contentions of continuous pain and chiropractic care since service discharge, for which medical records are unavailable, and that his disabilities were not evident on x-ray imaging and are better represented by MRI findings. Additionally, the physician failed to provide a rationale regarding the Veteran's neck disability. When VA provides an examination or obtains and opinion, it must ensure that the examination and/or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An addendum opinion should be obtained. Furthermore, during the October 2017 hearing, the Veteran's representative noted that the Veteran's entrance examination was absent of a spine condition. The presumption of soundness thereby attaches. See 38 U.S.C. § 1111 (2012). That said, X-ray imaging of the Veteran's lumbosacral spine from May 1983 showed "minimal scoliosis convex to the left". The May 2014 examiner stated that the Veteran's post-service diagnosis of scoliosis is a developmental condition for which there was no evidence of chronic care for during service or after service to suggest any chronic aggravation of a preexisting back condition. The Board finds an opinion is necessary to determine whether the Veteran's scoliosis is a congenital defect versus a congenital disease. See Quirin v. Shinseki, 22 Vet. App. 390, 394-397 (2009). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). If the Veteran's scoliosis is found to be a defect, then an opinion is needed to address whether his currently diagnosed lumbosacral spine degenerative disc and joint disease is a superimposed injury. If the Veteran's scoliosis is found to be a disease, an opinion should be obtained to address scoliosis on a direct basis. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary releases, obtain any updated VA and private treatment records regarding the Veteran's claimed back and neck disabilities. 2. Thereafter, return the claims file to the physician who provided the May 2014 VA opinion, if available. The claims file, including a copy of this remand, should be reviewed. If the May 2014 VA physician is unavailable, return the claims file to another appropriate examiner to respond to the below inquiry. If the examiner determines that a physical examination is necessary in order to offer an opinion, please arrange for such an examination. Thereafter, the physician is asked to respond to the following: (a) Is the Veteran's scoliosis (as first indicated on the May 1983 x-ray imaging) a congenital/developmental defect or a congenital/developmental disease? The examiner is informed a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. i. If scoliosis is a congenital/developmental defect, explain whether it is at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in additional back disability. ii. If scoliosis is a congenital/developmental disease, explain whether it is at least as likely as not (50 percent or greater probability) that it was incurred during service or is related to any event or injury in service. (b) For any other back disability diagnosed, to include degenerative disc and joint disease of the lumbar spine, is it at least as likely as not (50 percent or greater probability) that the condition was incurred during service or is related to any event or injury in service, to include his in-service reports of lumbar pain? (c) For each neck disability diagnosed, to include degenerative disc disease of the cervical spine, is it at least as likely as not (50 percent or greater probability) that the condition was incurred during service or is related to any event or injury in service, to include his in-service reports of cervical pain? The examiner should specifically comment on the Veteran's competent reports of ongoing chiropractic care for back and neck pain since service discharge and his contentions that "x-rays are not of much use in this case" but rather MRI studies are needed to show the severity of his current back and neck disabilities. The examiner is also asked to discuss the significance, if any, of the micro-traumas that the Veteran experienced from making multiple parachute jumps. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner determines that an opinion cannot be rendered without result to mere speculation then it should be clear in the examiner's remarks whether it cannot be determined from current medical authority or if an opinion could be rendered if additional facts were known. If additional facts are needed, the examiner shall state what facts, if known, would impact his or her ability to render an opinion and how. Simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. 3. After completion of the above, readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and allow an appropriate period of time to respond. Then return the claim to the Board for further adjudication. 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 that are 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs