Citation Nr: 21065671 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-14 333A DATE: October 27, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a cervical spine strain, is reopened, and to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a depressive disorder is reopened. Entitlement to service connection for a depressive disorder is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The September 2013 rating decision that denied service connection for a depressive disorder and a cervical spine disability was not timely appealed and became final. 2. Evidence received since the September 2013 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for a cervical spine disability. 3. Evidence received since the September 2013 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for a depressive order. 4. The Veteran's depressive disorder has been shown to be causally related to his period of active service. CONCLUSIONS OF LAW 1. The September 2013 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for a cervical spine strain has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence sufficient to reopen the claim of service connection for a depressive disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 2000 to September 2004, with a period of service in Iraq. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board notes that in March 2019, the Veteran opted the issues denied in a July 2018 rating decision into the modernized review system by timely submitting an appropriate form electing the evidence submission option under the AMA. 38 C.F.R. §§ 3.2400 (b), (c)(2), 3.2500(a)(1)(ii), 19.2(d). On the same opt in form, the Veteran listed his claim for a depressive disorder and a cervical spine disability. In response to the Veteran's election of the modernized review system, in February 2021, that the RO issued a rating decision regarding the Veteran's claim for service connection for a cervical spine disability. While it is unclear why this occurred as the issues were still on appeal in the legacy system, the filing of the request for review under the AMA system did not serve to withdraw the Veteran's claim from the legacy appeal system. 38 C.F.R. § 3.2400 (c)(1)(2), (d). As such, the February 2021 rating decision issued by the RO was erroneous and the current appeal as to the issues listed above are still properly before the Board. The remaining issues listed on the March 2019 VA form 10182 must be decided pursuant to the modernized review system (under the AMA), and will be the subject of a separate Board decision issued at a later date. New and Material Evidence Ratings actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 C.F.R. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38U.S.C. §5108; 38C.F.R. §3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited 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. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. 1. Reopening claim for service connection for cervical spine strain The last prior final decision for the claim for service connection for a cervical spine disability was a September 2013 rating decision. It is final because the Veteran did not file a notice of disagreement within one year of the rating decision. 38 U.S.C. § 7105, 38 C.F.R. §§ 20.302, 20.1103. Therefore, the Board looks to the evidence submitted since September 2013 for new and material evidence. The evidence of record in September 2013 consisted of the Veteran's lay statements and service treatment records. The evidence failed to establish that the Veteran's neck disorder was causally related to his active service. Evidence received since the rating decision includes VA treatment records, further lay statements, and hearing testimony from the Veteran. Of particular note, his July 2021 VA Board hearing testimony reflects reports that the Veteran injured his neck in service due to the weight of everything he carried during basic training as well as being put in a headlock by a fellow service member during a combat training exercise that required him to wear a neck brace, and that his neck pain has persisted since service. The Boards finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The July 2021 Board hearing testimony will be presumed credible for the purpose of reopening the claim. Therefore, reopening of the claim for service connection for a cervical spine is warranted. 38 C.F.R. § 3.156(a). 2. Reopening claim for service connection for a depressive disorder The last prior final decision for the claim for service connection for a depressive disorder was a September 2013 rating decision. It is final because the Veteran did not file a notice of disagreement within one year of the rating decision. 38 U.S.C. § 7105, 38 C.F.R. §§ 20.302, 20.1103. Therefore, the Board looks to the evidence submitted since September 2013 for new and material evidence. The evidence of record in September 2013 consisted of the Veteran's lay statements and service treatment records. The evidence failed to establish that the depressive disorder was causally related to his active service. Evidence received since the rating decision includes VA treatment records, VA treatment records, further lay statements, and hearing testimony from the Veteran. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge, 155 F.3d at 1356. In the September 2013 rating decision, the RO denied the Veteran's claim for service connection for a depressive disorder because he was not shown by the evidence of record to have a current diagnosis of a depressive disorder. Evidence received since September 2013 includes the Veteran's VA treatment records, which show that the Veteran has been diagnosed with, and currently receives treatment for, a depressive disorder. As this evidence was not of record at the time of the September 2013 denial and it relates to an unestablished fact necessary to substantiate the Veteran's claim, the Board finds the evidence to be both new and material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. Accordingly, the claim for entitlement to service connection for a depressive disorder is reopened. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 3. Entitlement to service connection for a depressive disorder The Veteran seeks service connection for a depressive disorder, which he contends was incurred in or aggravated by military service due to several traumatic events that he experienced while on active duty. As noted above, the first element of service connection requires medical evidence of a present disability. VA treatment records show that the Veteran has been diagnosed with a depressive disorder. Thus, the question before the Board is whether the Veteran's depressive disorder is etiologically related to his active-duty service. Based on a careful review of all the subjective and clinical evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a depressive disorder is warranted. Concerning an in-service injury or disease, the Veteran relayed a variety of stressful events that occurred during his period of service in Iraq. In particular, the Veteran stated that he witnessed a young boy being shot and killed in front of his parents and also described having to recover the body of a soldier who was killed in action a few days prior from a shallow grave. Overall, and in the interest of providing the benefit of the doubt and giving due consideration to the nature, type and place of the Veteran's service, the Board finds that the lay and other evidence of record establishes an in-service event, injury, or disease for the purposes of direct service connection. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.102. The Veteran underwent an April 2013 VA examination to determine the nature and etiology of his depressive disorder. The VA examiner confirmed a diagnosis of a depressive disorder and stated that it was at least as likely as not that the Veteran's diagnosed depressive disorder was causally related to the reported in-service events. In support of her opinion, the examiner considered the Veteran's service in Iraq in 2003 where he reported that he saw a young boy get shot in the head by a sniper. He also was part of a mission to go and bring a soldier back that had been buried for two weeks in a shallow grave. The soldier had been killed in an ambush, and now they had to bring his body home. The examiner further noted the Veteran's long history of substance abuse and concluded that the Veteran uses drugs and alcohol to manage his symptoms. Overall, the VA examiner opined that the Veteran's depressive disorder was "incurred in or the result of his reported military stressors". There is no evidence that the April 2013 VA examiner was not competent or credible, and as the opinion is based on a review of the file and an interview and examination of the Veteran, the Board finds that it is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). No other medical opinions are of record. Further, during the July 2021 Board hearing, the Veteran testified before the undersigned as to the exact same events during his service in Iraq. He testified that he often attempts to self-medicate with alcohol since experiencing the in-service events described above. The Board finds that the Veteran gives a consistent, credible account of the circumstances of his service in Iraq. Based on the foregoing, the Board finds that the competent and credible evidence of record establishes that the Veteran's depressive disorder is related to his active service. As such, service connection for a depressive disorder is warranted on a direct basis. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Unfortunately, the remaining claim on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for a cervical spine disability is remanded. The Veteran seeks entitlement to service connection for a cervical spine disability, currently diagnosed as a cervical spine strain, which he contends was incurred in or caused by military service. The Veteran's STRs show a July 2021 complaint of a sore neck with difficulty in rotation, flexion, and extension of his neck. He was treated with pain medication. At the July 2021 Board hearing, the Veteran testified that he injured his neck during service due to the weight he was required to carry during basic training and heavy equipment he carried daily performing his duties as a field wireman. He further described an incident in which he was engaged in hand-to-hand combat in a field training exercise, was grabbed in a head lock and was pulled to the ground resulting in neck pain, being fitted with a neck brace, and being assigned light duty. He maintains that he has continued to experience neck pain ever since these in-service injuries. The Veteran last underwent a VA examination of his spine in August 2013. Upon examination, the examiner confirmed a diagnosis of a cervical strain. The VA examiner opined that the Veteran's neck condition was less likely than not incurred in or caused by service. In this regard, although the Veteran reported during the examination that he injured his neck in service after being "grabbed around the neck & thrown to the floor" during a training exercise and since that time he has experienced discomfort in the back of his neck. Despite the Veteran's statements, the negative VA opinion was based on a lack of documented continued or persistent complaints or treatment for a cervical spine condition during, or approximate to, active-duty service following the documented July 2001 complaint of a sore neck and noting that there is no evidence of chronicity or ongoing treatment for the condition for many years following service. The Board finds the opinion to be inadequate because it does not appear that the examiner considered the Veteran's lay statements of record with regard to experiencing a continuity of symptoms ever since his in-service injuries. An opinion based on the absence of medical records without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the record does not contain a medical opinion sufficient to fairly adjudicate the Veteran's claim, the Board finds that remand is necessary to obtain an adequate medical opinion that fully assesses the nature and etiology of the Veteran's cervical spine disability. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an additional VA examination by an examiner who has not previously examined the Veteran to determine the etiology of all diagnosed cervical spine disabilities. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide a fully articulated medical opinion that sufficiently addresses the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability (i) had its onset during the Veteran's active-duty service or within one year of separation, or (ii) is otherwise etiologically related to his active-duty service? In providing the requested opinion, the examiner must adequately consider and discuss the Veteran's contention that he developed neck problems as a result of regular physical training (training with a heavy pack, carrying heavy equipment due to his military occupational specialty, etc.) during military service and that he has suffered no other neck injury that would explain his disability. The examiner should also specifically address the relevance, if any, of the July 2001 service treatment record documenting complaints and treatment for neck pain. The examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran is competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's file, when necessary, to support the conclusion reached. If the examiner determines that an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.