Citation Nr: 18122920 Decision Date: 08/01/18 Archive Date: 07/31/18 DOCKET NO. 12-17 262 DATE: August 1, 2018 ORDER Reconsideration of a previously denied claim of entitlement to service connection for a cervical spine disability is granted. REMANDED The claim of entitlement to service connection for a cervical spine disability, on the merits, is remanded. FINDINGS OF FACT 1. In a July 2008 rating decision, the RO most recently declined to reopen a previously denied claim for service connection for a cervical spine disability; although notified of the denial in a letter that same month, the Veteran did not initiate an appeal. 2. New evidence associated with the claims file since the July 2008 denial to reopen a previously denied claim for service connection for a cervical spine disability includes relevant official service department records not previously considered. CONCLUSION OF LAW As pertinent evidence received since the July 2008 denial to reopen a previously denied claim for service connection for a cervical spine disability includes official service department records not previously considered, the criteria for reconsideration of the claim for service connection for a cervical spine disability are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1978 to September 1981 and from January 1996 to May 1996. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, inter alia, denied the Veteran’s request to reopen a claim for service connection for a cervical spine disability. In August 2010, the Veteran filed a notice of disagreement (NOD). In October 2011, the Veteran testified during a hearing before a Decision Review Officer (DRO). A transcript of that hearing has been associated with the claims file. In a June 2012 statement of the case (SOC), the RO determined that the claim for service connection for a cervical spine disability must, instead, be reconsidered due to the receipt of official service department records that were not before the RO when the claim was originally adjudicated, but continued to deny the claim, on the merits. The claim for service connection for a cervical spine disability was originally denied in a February 1997 rating decision by the RO. Later in June 2012, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). Supplemental SOCs (SSOCs) were issued in May and July 2016. In April 2018, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the claims file. In May 2018, the Veteran’s representative submitted additional medical evidence, in support of the claim on appeal, directly to the Board—along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304. For reasons made clear below, the Board finds that the claim initially adjudicated as a request to reopen is more appropriately characterized as a request for reconsideration, consistent with the provisions of 38 C.F.R. § 3.156(c). Moreover, given the favorable disposition of the reconsideration request, as discussed below, the appeal also has been expanded to include the underlying de novo claim for service connection. Reconsideration The Veteran’s claim for service connection for a cervical spine disability was initially denied by the RO in a February 1997 rating decision. Although notified that her claim for service connection for a cervical spine disability was denied in a February 1997 letter, the Veteran did not initiate an appeal. Moreover, no additional evidence was received within the one-year appeal period following notification of the denial. See 38 C.F.R. § 3.156(b). Following the Veteran’s attempts to reopen the claim in June 2004 and January 2008, the RO declined to reopen the Veteran’s claim for service connection for a cervical spine disability in May 2005 and July 2008 rating decisions. Although notified that her claim for service connection for a cervical spine disability was denied in May 2005 and July 2008 letters, the Veteran did not initiate an appeal. Moreover, as to each denial, no new and material evidence was received within the one-year appeal period following notification of the denial. See 38 C.F.R. § 3.156(b). Typically, this fact would render the decision final as to the evidence then of record, and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Under such circumstances, VA could only reopen and review such claim if new and material evidence is submitted by or on behalf of the Veteran. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c). In this case, additional evidence was associated with the claims file following the prior denials—specifically, during the October 2011 DRO hearing, the Veteran submitted additional service treatment and personnel records. These records are relevant to the Veteran’s claim, as they concern complaints of and treatment for neck pain and cervical herniated disc, respectively, in service. These records existed at the time of the prior denials, but were not associated with the claims file or considered by the RO at those times. As such, pursuant to 38 C.F.R. § 3.156(c), the receipt of these additional service records requires reconsideration of the claim for service connection for a cervical spine disability—which, effectively, renders the prior denials non-final. Hence, there is no basis for analysis of the claim for service connection for a cervical spine disability as a request to reopen under 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the de novo claim for service connection for a cervical spine disability is warranted. The Veteran asserts that her current cervical spine disability, which preexisted her second period of active service, was aggravated by that period of service. In this regard, she reports that she had a herniated disk in her neck and was put on a permanent physical profile during her reserve service (after her first period of active service, but before her second period of active service), and that at the time of her deployment for her second period of service in 1996, she was required to repeatedly lift and move military gear, which aggravated her previous cervical spine injury. In connection with her claim, the Veteran was most recently afforded a VA neck (cervical spine) conditions examination in February 2012. The VA examiner confirmed a 1993 diagnosis of herniated disc of the cervical spine, and opined that the Veteran’s claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiner reasoned that the change in the Veteran’s condition, both in terms of documented complaints and radiological evaluation, seemed to happen at some point around 2003, and that she did not locate documentation that showed an escalation in symptoms from 1995 until that point in time. However, since the February 2012 VA examination and opinion were provided, additional evidence has been added to the record which should be considered in the formulation of a medical etiology opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (it is incumbent on the examiner to consider all relevant evidence before forming an opinion). Significantly, in May 2018, the Veteran’s representative submitted an April 2018 private medical opinion, in which Dr. T.D. opined that the Veteran’s testimony was consistent with symptoms of an aggravation to a cervical injury. In this regard, Dr. T.D. noted the following: before the Veteran was deployed, a diagnosis for the cervical herniated disc was available and a permanent physical profile was complete; during the act of deploying, the Veteran was required to repeatedly lift her gear, and was ordered to “duffle bag detail” to help with and take charge of moving the gear when it arrived in the airport baggage area; on average, per the Veteran’s own military knowledge, a full duffle bag weighs between 40 to 50 pounds; the Veteran said she was 5’ 3’’and weighed about 115 pounds at the time, and had the herniated disc, so the lifting was very difficult; and the day after arriving to the deployment location, the Veteran stated that her neck was very painful, the muscles were tight, and she had overwhelming headache pain for which she was treated in the ER with medication, ordered to rest, and light work duty for 72 hours. Dr. T.D. also opined that the aggravation to the preexisting cervical spine injury is/was more than 50 percent likely caused during her active military service for this deployment. Dr. T.D. noted that in a March 2008 VA treatment note, the Veteran’s former primary care doctor stated that the Veteran’s chronic neck pain was as likely as not related to service-connected injury. Moreover, considering that there are notations of cervical degenerative disc and joint disease of record (see e.g., November 2012 VA Treatment Note and July 2010 Kaiser Permanente Treatment Note ), in light of the above-mentioned opinions, it is unclear what the Veteran’s current cervical spine disability(ies) are, and if any current cervical spine disability(ies) preexisted her second period of active service. Relatedly, to the extent that the Veteran contends that Dr. T.D.’s April 2018 opinion resolves the claim on appeal, the Board finds that it does not because it is still unclear from this opinion whether a current, preexisting cervical spine disability was aggravated by active service. Therefore, the Board concludes that further medical findings and opinions—based on full consideration of the Veteran’s documented medical history and assertions, and supported by complete, clearly-stated rationale—are needed to resolve this claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 81. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to obtain an examination or opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide or obtain one that is adequate for purposes of the determination being made). Accordingly, on remand, the AOJ should arrange for the Veteran to undergo VA cervical spine examination by an appropriate physician. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in denial of her claim. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Denver, Colorado, and that records from those facilities dated through January 2016 are associated with the file; however, more recent records may exist. Therefore, the AOJ should obtain from the Denver VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since January 2016, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. This matter is hereby REMANDED for the following action: 1. Obtain from the Denver VAMC all outstanding records of evaluation and/or treatment of the Veteran, dated since January 2016. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA cervical spine examination, by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should first clearly identify all cervical spine disability(ies)—to include cervical degenerative disc and joint disease—currently present or present at any point pertinent to the current claim on appeal (even if now asymptomatic or resolved). Then, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether: (a) the disability clearly and unmistakably existed prior to the Veteran’s second period of active service (January 1996 to May 1996), and; if so (b) whether the disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of the Veteran’s second period of active service. If the examiner determines that a cervical spine disability did not clearly and unmistakably exist prior to the Veteran’s second period of active service, for each such disability, the examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its onset during, or is otherwise medically-related to, either the Veteran’s first period of active service (September 1978 to September 1981) or second period of active service (January 1996 to May 1996). The examiner is advised that the term “clearly and unmistakably” means that which cannot be misunderstood or misinterpreted and is undebatable. In addressing the above, the examiner must consider and discuss all pertinent medical and other objective evidence of record—to include, the April 2018 opinion from Dr. T.D. and the March 2008 VA treatment note—as well as all lay assertions—to include, the Veteran’s assertions as to in-service events, and the nature, onset and continuity of symptoms. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must specifically be acknowledged and considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the de novo service connection claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JANE ROTHSTEIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel