Citation Nr: 20005003 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 18-49 416 DATE: January 22, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder. Entitlement to service connection for a neck disorder, to include as secondary to a low back disorder is denied. FINDINGS OF FACT 1. In an April 2010 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a neck disorder. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the April 2010 rating decision relates to an unestablished fact that raises a reasonable possibility of substantiating the claim of entitlement to service connection for a neck disorder. 3. The Veteran’s neck disorder did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied the claim of entitlement to service connection for a neck disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a neck disorder have not met. 38 U.S.C. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to September 1995. The Veteran died in December 2015. The appellant, who is the Veteran’s surviving spouse, has been substituted as the Veteran for purposes of processing the appeal to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Since the case was certified to the Board in December 2018, additional evidence not relevant to the issues on appeal has been obtained and associated with the record. As a result, a waiver of initial Agency of Original Jurisdiction review is not necessary, and the Board may proceed with the claim. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder. Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented as to that claim. 38 U.S.C. § 5108. The regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim “must be read as creating a low threshold.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Id. at 118. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Id. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran previously submitted a claim of entitlement to service connection for a neck disorder in August 2009, which was denied in an April 2010 rating decision on the basis that there was no evidence of a nexus to service. The Veteran did not appeal this decision, and new and material evidence was not received within one year of its issuance. Accordingly, the April 2010 rating decision is final, and new and material evidence is required to reopen the claim. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242 (2010). In connection with the Veteran’s claim to reopen, the Veteran submitted new and material evidence in the form of treatment records and an October 2013 VA examination. Additionally, the Veteran submitted lay statements indicating that his neck pain was related to his military occupational specialty (MOS) of aircraft fire control specialist, which consisted of lifting heavy technical equipment. See March 2014 Notice of Disagreement (NOD). Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Entitlement to service connection for a neck disorder, to include as secondary to a low back disorder is denied. During his life, the Veteran asserted that his neck disorder was related to his in-service cervical strains and MOS, or in the alternative is related to his low back disorder. See March 2014 NOD. Specifically, the Veteran maintained that his MOS of aircraft fire control specialist consisted of lifting heavy technical equipment, heavy aircraft weaponry, and support equipment that were likely 100 pounds. Id; January 2015 treatment record. Initially, the Board notes that the Veteran had a diagnosis of degenerative joint disease of the cervical spine, satisfying element one of service connection. See October 2013 VA examination report. Regarding the second element of service connection, the Veteran complained of left side neck and shoulder pain of two week’s duration in October 1992. The assessment was a questionable strain. The contemporaneous X-ray was normal. In February 1993, the Veteran complained of neck pain of one week’s duration after doing sit-ups to muscle failure. The diagnosis was cervical spine paravertebral muscle strain. The contemporaneous X-ray was normal. The Veteran was again diagnosed with a cervical strain in September 1993. Thus, the second element of service connection is also established. There are no post-service private or VA treatment records prior to August 2004 showing complaints, treatment, or diagnoses of a neck disorder. An August 2004 radiology report noted anterior osteophytes. A March 2005 MRI revealed left sided disk herniations. In April 2005, he reported that he was lifting paperwork bundles at work and had significant left shoulder pain. Thus, private treatment records show the Veteran was not diagnosed with a neck disability until August 2004, approximately nine years after his separation from service. Notably, during his October 2013 VA examination, the Veteran stated that he did not report neck pain at service discharge as he had no symptoms or complaints at that time. The Veteran explicitly reported that his in-service symptoms subsided. Regarding the final element, nexus, in the October 2013 opinion supported by information from the Veteran’s relevant medical history, the VA examiner opined that the Veteran’s neck disorder was less likely than not related to an in-service injury or event, including the in-service complaints of neck pain and his active duty MOS. The rationale was that the in-service radiology reports were within normal limits and that the in-service complaints of neck pain were due to a cervical strain. The examiner noted that the Veteran was not diagnosed with degenerative joint disease and osteophytes until approximately nine years after service discharge. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the only competent and probative opinion of record is against the claim. To this end, the Veteran is competent to report symptoms, such as pain, and when those symptoms had their onset. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, he nor the appellant have been shown to have the requisite medical training to render an opinion on the etiology of his neck disorder. Therefore, their opinion as to the etiology of the disorder is not competent medical evidence, and is thus afforded no probative weight. Furthermore, while degenerative changes of the cervical spine were noted in an April 2010 CT scan, that diagnosis comes approximately fifteen years after his separation from active duty. See March 2011 VA treatment record. There is no credible indication that arthritis of the neck manifested within the first post service year or during service. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, the provisions regarding presumptive service connection and service connection based on continuity of symptomatology are not applicable to this Veteran’s case. Further, service connection for a neck disorder cannot be established on a secondary basis, as the back disorder is not service-connected. Service connection cannot be established for a secondary disability where the primary disability is not service-connected. 38 C.F.R. § 3.310. In short, the probative evidence weighs against finding a causal nexus between the Veteran’s neck disorder and service and service connection has not been granted for a back disorder. Additionally, the Veteran did not assert a continuity of neck symptoms dating from his service through the present. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.