Citation Nr: 18129486 Decision Date: 08/24/18 Archive Date: 08/24/18 DOCKET NO. 13-15 701 DATE: August 24, 2018 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disorder. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected lumbosacral strain with fibromyositis of the lumbar paravertebral muscles, is remanded. Entitlement to service connection for a neurological disorder of the left lower extremity other than diabetic peripheral neuropathy, to include as secondary to service-connected lumbosacral strain with fibromyositis of the lumbar paravertebral muscles, is remanded. Entitlement to service connection for a neurological disorder of the right lower extremity other than diabetic neuropathy, to include secondary to the service-connected lumbosacral strain with fibromyositis of the lumbar paravertebral muscles, is remanded. FINDINGS OF FACT 1. A July 1993 rating decision denied entitlement to service connection for a neck and cervical spine injury on the basis that the service treatment records did not show that the Veteran had a neck injury in service. The Veteran was notified of that decision, but did not perfect an appeal of that decision. 2. A December 2016 VA treatment record noting that the Veteran has had chronic neck pain with radicular symptoms since an in-service injury, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a cervical spine disorder. CONCLUSIONS OF LAW 1. The July 1993 rating decision, which denied the Veteran’s claims of entitlement to service connection for a neck and cervical spine injury, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the July 1993 rating decision is new and material, and the claim of entitlement to service connection for cervical spine disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1967 to February 1970 and from August 1975 to March 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As noted in findings of facts and conclusions of law, the Board is reopening the claim of entitlement to service connection for a cervical spine disorder. The RO adjudicated the lumbar spine claim as a new and material claim on the basis that the claim was previously denied in the July 1993 rating decision. The July 1993 rating decision notes in passing that “there is no basis for establishing service connection for the currently diagnosed degenerative disc disease of the cervical and lumbar spines.” However, only the issue of service connection for residuals of a neck and cervical spine injury was explicitly denied in both the rating decision and accompanying notice letter. Thus, there is not a prior final denial on the issue of entitlement to service connection for a lumbar spine disorder other than service-connected lumbosacral strain with fibromyositis of the lumbar paravertebral muscles and the July 1992 claim for service connection for degenerative disc disease of the lumbar spine remains pending. As the RO obtained a medical opinion addressing whether the degenerative disc disease of the lumbar spine is secondary to the service-connected fibromyositis, the Board will consider whether the degenerative disc disease is secondary to the service-connected lumbosacral strain with fibromyositis of the lumbar paravertebral muscles. REASONS FOR REMAND In an October 2011 addendum, a November 2010 VA examiner opined that the degenerative disc disease, bilateral radiculopathy, and lumbar peripheral neuropathy were not related to service or the service-connected fibromyositis. Similarly, a February 2015 VA examiner opined that the lumbar degenerative disc disease was not related to the service-connected fibromyositis. These opinions do not address whether it is likely as not that the lumbar spine disorder is related to service or the service-connected lumbar spine disabilities. Thus, the medical opinions are inadequate and another VA examination is necessary to address the lumbar spine disorder and neurological disorders of the lower extremities. The Veteran’s service treatment records show that he suffered an injury to the left occipital in July 1969. A VA examination is required to determine whether his cervical spine disorder is related to the in-service head injury. Since the claims are being remanded for other reasons, the RO should obtain any additional records from the San Juan VA Medical Center from December 2017 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his cervical and lumbar spine disorders and neurological disorders of the lower extremities and obtain any identified records. Obtain the Veteran’s VA treatment records from the San Juan VA Medical Center for the period from December 2017 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine disorder, lumbar spine disorder, and neurological disorders of the lower extremities. For each cervical spine disorder, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service head injury in July 1969. For each lumbar spine disorder other than lumbosacral strain and fibromyositis and each neurological disorder of the lower extremities other than diabetic neuropathy, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service low back injury. The examiner must opine on whether it is at least as likely as not that a lumbar spine disorder was (1) caused by or (2) aggravated by the service-connected lumbosacral strain or fibromyositis. If the medical provider finds that lumbar spine disorder was aggravated by the service-connected lumbosacral strain or fibromyositis, then the examiner should quantify the degree of aggravation. The examiner must opine on whether it is at least as likely as not that any neurological disorder of the lower extremities other than diabetic neuropathy was (1) caused by or (2) aggravated by the service-connected lumbosacral strain or fibromyositis. If the medical provider finds that the neurological disorder was aggravated by the service-connected lumbosacral strain or fibromyositis, then the examiner should quantify the degree of aggravation. 3. Thereafter, the RO must readjudicate the issues on appeal, with consideration of secondary service connection. If any benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an   opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel