Citation Nr: 1817771 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 16-56 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a neck disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a neck disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from December 1954 to September 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A November 1956 rating decision denied the Veteran's claims of service connection for neck and shoulder disabilities; he did not appeal the decision or submit new and material evidence within the one year appeal period following the decision. 2. Evidence received since the November 1956 rating decision is new and is related to an unestablished fact necessary to substantiate the claim of service connection for a neck disability and it raises a reasonable possibility of substantiating the claim. 3. Evidence received since the November 1956 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for a left shoulder disability. 4. The preponderance of the evidence shows that a neck disability was not present in service or until many years thereafter and it is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The November 1956 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence submitted to reopen the claims of entitlement to service connection for a neck disability is new and material, and therefore the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has not been submitted sufficient to reopen a claim of entitlement to service connection for a left shoulder disability. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims, in substance, that he is entitled to service connection for neck and left shoulder disabilities because his current disabilities were caused by an in-service injury playing football while in Germany when he speared another play in the chest with his head. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); also see statement in support of claim dated in September 2014. The Veteran also claims, in substance, that he has current neck and left shoulder disabilities because he entered military service shortly after injuring his right shoulder and the stress he placed on his body while on active duty did not allow that right shoulder to properly heal and this lead to problems with his neck and left shoulder. Id. The Claims to Reopen 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.A. § 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). The United States Court of Appeals for Veterans Claims (Court) has held that 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 give consideration to all of 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 Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." 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 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With the above criteria in mind, the record shows that a November 1956 rating decision denied the Veteran's claims of service connection for neck and shoulder disabilities. A review of the record on appeal, including the available service treatment records, showed that at the time of the denial the Veteran was not diagnosed with either a neck or a shoulder disability. The Veteran did not appeal the November 1956 rating decision. Moreover, additional evidence was not added to the claims file in the first year after the November 1956 rating decision. Accordingly, the Board finds that the November 1956 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since the final decision, VA received private treatment records, the results from a July 2013 VA examination, and written statements in support of the claims from the Veteran as well as copies of service treatment records. a. The Neck As to the neck disability, since the final decision VA received treatment records from a Dr. Nile R. Lestrange dated from1998 to 2002 that for the first time show the Veteran being diagnosed with a neck disability (i.e., degenerative joint disease and disc bulging), an August 2014 medical statement in which it was opined that the severity of the Veteran's neck disability leads the examiner to believe that it was caused by "a severe accident many years ago," and a September 2014 statement in support of claim from the appellant in which he provided for the first time a detailed description of the in-service event that caused both his neck disability (i.e., he injured his neck playing football while on active duty in Germany when he speared another player in the chest with his head). Therefore, because a current disability and an in-service injury are both condition precedents for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)), the Board finds that this evidence constitutes new and material evidence and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104; 38 C.F.R. § 3.156. b. The Left Shoulder As to the left shoulder disability, the medical records added to the claims file since the final decision continue to be negative for a left shoulder disability. In fact, when examined by VA in July 2013 the examiner specifically opined that the Veteran did not have a left shoulder disability and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As to the writings from the Veteran, the Board finds that they are, in substance, assertions by the appellant that he has a current left shoulder disability due to military service. However the Veteran, neither now nor at the time of the earlier final rating decision, is competent to provide the missing diagnosis because he does not have the required medical training to provide a complex medical opinion. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Therefore, the Board finds these writings are neither new nor material evidence because they were, in substance, duplicative of his claims at the time of the final prior rating decision. See 38 C.F.R. § 3.156(a). Lastly, the Board finds that the service treatment records added to the record since the time of the prior final decision are also neither new nor material evidence because they are duplicative. 38 C.F.R. § 3.156(a). In summary, the Board finds that the additional evidence added to the claims file since the time of the prior final rating decision do not show that the Veteran is entitled to service connection for a left shoulder disability because they do not provide credible evidence of a current disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; also see Hickson v. West, 12 Vet. App. 247, 253 (1999); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Instead, the Board finds that additional evidence added to the claims file is, in substance, duplicative of evidence found in the record at the time of the prior final rating decision. Accordingly, the Board finds that this evidence is neither new nor material evidence and the claim is denied. 38 C.F.R. § 3.156(a). The Service Connection Claim New and material evidence has been submitted to reopen the claims of entitlement to service connection for a neck disability; to this extent only the appeal is granted. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson, supr. The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain, supra. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The post-service records show the Veteran's neck being diagnosed with arthritis and bulging disks. See, e.g., VA examination dated in July 2013. Moreover, the Board finds that the Veteran is competent to report on the events he experiences, like jamming his neck playing football, as well as manifestations of his disability, such as pain and lost motion, because it comes to him via his own senses. See Davidson, supra. Additionally, a February 1956 service treatment record noted that five months earlier the Veteran sustained an injury playing football and he had had continued trap/shoulder pain since that time diagnosed as an old trapezius strain. In February 1956, service treatment records also reported that the Veteran received massage and heat treatment for an unidentified problem. Thereafter a March 1956 service treatment record documents the Veteran's complaints of neck pain when moving his head. Similarly, when examined for separation in September 1956 the Veteran reported a history of September 1955 neck injury playing football with continued pain in the junction between the neck and shoulder since that time diagnosed as a possible pinched nerve. Lastly, service treatment records show the Veteran seeking treatment at a dispensary in Munich, Germany in November 1956. However, at the May 1954 pre-induction examination while the Veteran reported a history of a right shoulder injury, the examiner did not diagnose a right shoulder disability and the appellant did not complain and the examiner did not diagnosis a neck and/or left shoulder disability. Likewise, at a July 1956 examination the Veteran did not report having current neck problems. Moreover, despite the history of injuring his neck playing football, the September 1956 separation examination opined that his neck and neurological examinations were normal. These medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. Therefore the Board finds, as did the September 1956 examiner found, that the injury the Veteran sustained to his neck while playing football on active duty was transitory and had resolved without residual by the time of his discharge. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a); also see Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). The record also does not show the Veteran being diagnosed with arthritis in his neck in the first post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Beyond this, the record does not show that the Veteran had a continued problem with his neck in and since service. In fact, as reported above, at the September 1956 separation examination the examiner opined that his neck and neurological examinations were normal. Likewise the post-service records are negative for a history, complaints, and/or a diagnosis of a neck disability until over four decades after service. See, e.g., treatment records from a Dr. Lestrange dated in June 1998. In fact, the Veteran's post-service neck complaints only appear in the record following his June 1998 motor vehicle accident in which he injured his neck. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the most probative evidence of record shows that the Veteran's current neck disability is not due to his military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). In this regard, the July 2013VA examiner opined that the Veteran's neck disability was not due to his military service and the Board finds this opinion the most credible medical evidence of record because it is supported by citation to medical evidence found in the claims file. See Owens, supra. In reaching this conclusion, the Board has not overlooked the September 2014 medical statement in which it was opined that the severity of the Veteran's neck disability leads the examiner to believe that it was caused by "a severe accident many years ago." However, the Board does not find that the September 2014 medical statement as accurate as the VA examiner's opinion because it does not ever specifically link the Veteran's current neck disability to military service and the examiner opines that the neck symptomatology he saw was most likely due to a motor vehicle accident and not the football injury reported by the Veteran. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Furthermore, the Board finds that the Veteran is not competent to provide a nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question. See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a neck disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. § 3.303. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a neck disability; to this extent only the appeal is granted. The application to reopen a claim of entitlement to service connection for a left shoulder disability is denied. Service connection for a neck disability is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs