Citation Nr: 21071955 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-62 644 DATE: December 1, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for back disability to include lumbar 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 cervical spine disability to include cervical strain is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a right wrist injury is remanded. Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a neck condition is remanded. FINDINGS OF FACT 1. The AOJ (Agency of Original Jurisdiction) denied service connection for lumbar strain and cervical strain in a December 1996 rating decision. The Veteran did not appeal the decision and it is final. 2. The evidence received since the December 1996 rating decision is neither cumulative nor redundant and raises a reasonable probability of substantiating the claims for service connection for a back condition and a neck condition. CONCLUSIONS OF LAW 1. The December 1996 rating decision, which denied service connection for lumbar strain and cervical strain, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for back and neck disabilities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from August 1988 to August 1991. The Veteran also served in the United States Naval Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in June 2016. New and Material 1. Whether new and material evidence has been received to reopen a claim of service connection for lumbar strain. 2. Whether new and material evidence has been received to reopen a claim of service connection for cervical strain. The Board has carefully reviewed the evidence of record and finds that new and material evidence has been received since the December 1996 rating decision which denied service connection for lumbar strain and cervical strain. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim based on all of the evidence of record. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In Shade, the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant's claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). At the outset, the Board notes that the Veteran's initial claim in August 1996, was only for entitlement to service connection for a low back injury and did not include a claim of entitlement to service connection for a cervical spine injury. In December 1996, the AOJ denied service connection for lumbar strain and cervical strain essentially based on a finding that the disabilities were not related to service. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In January 2016, the Veteran submitted a claim of entitlement to service connection for a lower back condition and an upper back condition. In June 2016, the AOJ confirmed and continued the prior denial of service connection for cervical strain and lumbar strain. The Veteran disagreed with the decision and perfected this appeal. Following the December 1996 rating decision, no additional service department records were associated with the record. Accordingly, the Board will proceed with the new and material analysis under 38 C.F.R. § 3.156(a). Relevant evidence of record at the time of the December 1996 decision included service treatment records and the Veteran's statement. Since that time, relevant additional evidence suggests a nexus between currently diagnosed lumbar strain and cervical strain and military service. This evidence, which was not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Thus, the claim is reopened. The Veteran's fellow service members have reported that the Veteran injured his back when he fell while performing maintenance on aircraft. See July 2017 lay statements. In addition, one of these individuals reported that part of the Veteran's duties in service, included manually carrying 5060-pound objects up and down several flights of stairs. See July 2017 lay statement. In July 2017, the Veteran stated that he had a couple of incidents during service, which caused his lumbar strain and cervical strain. He stated that following service he continued to suffer due to his back and neck injuries. In addition, the Veteran reported that following active-duty service, he served in the reserve; and continued to seek treatment for his back and neck injuries. In November 2017, the Veteran stated that he had complained of upper back and neck pain in December 1990 and was seen at emergency care due to having neck pain for one year. He also asserted that after he injured his low back in service, he later aggravated his low back injury during active reserve drill. Finally, the Veteran stated that his military occupational specialty was in maintenance of aircraft and he had to carry various types of equipment and tools associated with his job, which also affected his low back injury. More recently, in July 2021, the Veteran testified that he fell and hurt his back in approximately October or December 1989; and that he had chronic back pain since his injury in service. The Veteran also testified that he began experiencing neck pain after he fell during service. He testified that when he would carry boxes up and down the ladders in the ship, and would notice low back pain, as well as pain in his midback and upper back. The Veteran also testified that he sprained his neck. The statements of the Veteran and his fellow service members are both new and material. When considered with the evidence of record, this evidence triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Thus, the claim for service connection for lumbar strain and cervical strain are reopened. See Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As provided further below, additional development of the evidence is required, and the claims for service connection for a back condition and a neck condition will therefore be remanded for additional development prior to readjudication. REASONS FOR REMAND 1. Entitlement to service connection for a right wrist injury is remanded. The Veteran seeks service connection for a right wrist injury, which he asserts is related to service. The Veteran asserts that he reinjured his right wrist when he fell off an airplane while performing maintenance. See November 2017 Substantive Appeal; July 2021 Hearing Transcript. The Veteran also asserts that his right wrist was reinjured and aggravated due to daily use of his wrist while performing the duties of his military occupational specialty. Id. The Veteran further asserts that his right wrist injury has continued to affect him since service and has worsened. Id. The Veteran's fellow service members have reported that the Veteran injured his wrist when he fell while performing maintenance on aircraft in approximately August 1990. See July 2017 Buddy Statements. Service treatment records reflect complaints of right wrist pain from at least May 1989. See also October 1989 and November 1991 service treatment records. Although the record contains a VA opinion regarding the Veteran's right wrist injury, the Board finds that it is unable to decide the Veteran's claim based upon the findings of the May 2016 VA opinion. The Veteran was afforded a VA examination in May 2016. The VA examiner opined that the Veteran's diagnosed carpal metacarpal (CMC) arthritis, chronic scaphoid fracture, was less likely than not (less than 50 percent probability) incurred in or caused by a laceration to his wrist, which occurred in service. The Veteran reported that his right wrist condition began in 1988, when he fell and broke his wrist. The Veteran also reported that he had previously broken his right wrist in high school football, and the Veteran had a bone graft from the right hip to repair the fractured scaphoid bone. The Veteran reported that his right wrist condition had worsened. The examiner noted that although the Veteran did incur a laceration to his right hand, the laceration healed and appeared to have had no complications of the laceration. The examiner noted that the Veteran reported that he injured his wrist playing football while in high school and reported having a bone graft from his hip to correct. The examiner opined that it may have been an avascular condition of the scaphoid bone, which the examiner noted was also the condition found on x-rays taken for the current examination. The examiner opined that the injury in high school, which was present as a preexisting condition, was the main cause of his current complaints and functional limitation rather than the laceration. The examiner noted that although the Veteran incurred a laceration to his right hand, the laceration healed and appeared to have had no complications, and did not cause any damage to any bone structures. A May 2016 x-ray revealed a possible chronic scaphoid fracture. The evaluator recommended a CT or MRI for further evaluation of the Veteran's right wrist disability. The evaluator x-ray also revealed advanced degenerative changes in the radiocarpal joint. Initially, the Board notes, that the examiner did not adequately address the Veteran's contention that he injured his right wrist when he fell during service. Specifically, the examiner did not discuss whether it was at least as likely as not that the reported fall aggravated the Veteran's preexisting right wrist injury. Further, the examiner did not discuss whether it was at least as likely as not that the Veteran's advanced degenerative changes in the radiocarpal joint, which was found on the x-ray, was related to the Veteran's reported fall in service. The examiner apparently relied on the lack of objective evidence for a right wrist injury, other than a laceration, being present during service without comment regarding the competent non-medical evidence, which renders the opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). 2. Entitlement to service connection for a back condition is remanded. 3. Entitlement to service connection for a neck condition is remanded. The Veteran seeks service connection for a back condition and a neck condition which he asserts are related to service. In July 2017, the Veteran stated that he had a couple of incidents during service, which caused his lumbar strain, cervical strain and chronic scaphoid fracture, claimed as right wrist injury. He stated that following service he continued to suffer due to his back, neck and right wrist injuries. In addition, the Veteran reported that following active-duty service, he served in the reserve. The Veteran asserts that there are treatment records which establish that he continued to complain about his wrist, back and neck injuries. The Veteran also asserts that after he injured his low back in service, he later aggravated his low back injury during active reserve drill. Further, the Veteran reported that his military occupational specialty was in maintenance of aircraft and he had to carry various types of equipment and tools associated with his job, which also affected his low back injury. See November 2017 Form 9. The Veteran has stated that he had complained of upper back and neck pain in December 1990 and was seen at emergency care due to having neck pain for one year. See November 2017 Form 9 Substantive Appeal. The Veteran also testified that he began experiencing neck pain after he fell during service. He testified that when he would carry boxes up and down the ladders in the ship, he would notice low back pain, as well as pain in his midback and upper back. In addition, the Veteran testified that he sprained his neck. See July 2021 hearing testimony. The Veteran testified that he fell and hurt his back in approximately October or December 1989; and that he had chronic back pain since his injury in service. See July 2021 Hearing Testimony. The Veteran's fellow service members have reported that the Veteran injured his back when he fell while performing maintenance on aircraft. See July 2017 lay statements. In addition, one of these individuals reported that part of the Veteran's duties in service, including manually carrying 50-60 pound objects up and down several flights of stairs. See July 2017 lay statement. Service treatment records reflect treatment for lumbar strain from at least May 1990, and thoracic and cervical strain from at least June 1990. See also December 1990, August 1993, September 1993, and October 1993 service treatment records. Although the record contains VA opinions regarding the Veteran's lumbar sprain and cervical sprain, the Board finds that it is unable to decide the Veteran's claim based upon the findings of the May 2016 VA opinions. The Veteran was afforded VA examinations in May 2016, which reflect diagnoses of lumbosacral strain and cervical strain. The Veteran reported that his low back condition began in 1989, while carrying heavy boxes and washing a horizontal slab, and he fell on his backside. The Veteran reported that his low back condition had worsened as time has passed. The Veteran also reported that his upper back condition began in 1990, while lifting boxes up and down ladders on board carrier, and with repetitive lifting of chains and boxes. The Veteran reported that his upper back condition had gotten worse. The VA examiner opined that the Veteran's back condition was less likely than not (less than 50 percent probability) incurred in or caused by lower back pain, which occurred in 1989 to 1991. The examiner noted that a back injury was noted in service records in May 1990, but the May 1991 separation examination was normal for spine, upper extremities and lower extremities. Therefore, the Veteran's current low back condition was less likely than not due to an injury noted in service. The examiner noted that service treatment records reflect a May 1990 service treatment record, which revealed that the Veteran reported that he fell while carrying a box of chains and fell and landed on his back which the examiner opined was basically what the Veteran said occurred when he injured his back. The examiner noted that an August 1993 post-service treatment record, indicated that the Veteran complained of having walked backwards into a stationary propeller and injured his back in the same area that he was currently complaining during the May 2016 VA examination. The examiner noted that both occurrences are documented in the medical record and could account for his current complaints. The Board notes that the August 1993 post-service treatment records indicate that the Veteran's low back injury could have occurred during a period of active duty for training (ACDUTRA). A remand is necessary, in order to allow the AOJ to determine whether the Veteran's injury in August 1993 occurred during a period of ACDUTRA or inactive duty training (INACDUTRA). The VA examiner opined that the Veteran's upper back condition was less likely than not (less than 50 percent probability) incurred in or caused by cervical motion strain that occurred in 1989. The examiner noted that they were unable to find a cervical motion strain dated in 1989. The examiner noted that a December 1990 service treatment record, indicates that the Veteran complained of neck pain on and off for approximately one year; however, the examiner noted that the May 1991 separation examination was normal for the spine and all upper and lower extremities. The examiner opined that the December 1990 service treatment record, established the fact that he was seen and treated for a similar complaint while in military service. The VA examiner does not appear to have considered the August 1993 service treatment record, which indicates that the Veteran continued to complain of neck pain, which renders the examination inadequate. The Board finds that a supplemental VA opinion is warranted to determine the nature and etiology of the Veteran's cervical strain, to include during any qualifying period of ACDUTRA or INACDUTRA. Finally, the Board notes that the Veteran has identified relevant outstanding private treatment records. See November 2017 hearing testimony (private treatment providers, Dr. N.L. and Dr. N; and treatment in Mexico). A remand is required to allow VA to obtain authorization and request those records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA records and attempt to obtain all outstanding private records relating to treatment of the Veteran's right wrist injury, lumbar strain and cervical strain. 2. Obtain the Veteran's complete service personnel records from his active-duty service, ACDUTRA service, and INACDUTRA service, to include service in the United States Navy and the United States Naval Reserve, to determine the specific dates of active-duty service, ACDUTRA service, and INACDUTRA service. The AOJ should prepare a summary/memorandum based on verified information from appropriate official sources of the specific dates of active-duty service, ACDUTRA service, and INACDUTRA service for the Veteran in the United States Navy and Naval Reserve. Records concerning service merely denoting the amounts of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on active duty, ACDUTRA and INACDUTRA. 3. Following the receipt of outstanding records, obtain a VA addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran's right wrist injury. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination. In regard to the Veteran's current chronic scaphoid fracture, based upon a review of the record, the examiner should address the following: (a.) Whether the Veteran preexisting right wrist fracture increased in severity during active duty beyond the natural progression of such disorder during such service. (b.) If not, whether it is at least as likely as not (50 percent or greater likelihood) that any current right wrist disability had its onset in service, that arthritis was manifest to a compensable degree within one year of active duty service, or that it is otherwise causally or etiologically related to a qualifying period of service include any verified period of ACDUTRA or INACDUTRA; In rendering the opinions, the examiner must consider and discuss the statements of the Veteran and his fellow service members regarding the onset and continuity of the symptoms of his right wrist injury. The examiner should consider and discuss the service treatment records, which reflect that the Veteran complained of right wrist pain. See May 1989, October 1989 and November 1991 service treatment records. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. 4. Following the receipt of outstanding records, obtain a VA addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran's neck disability. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination. The AOJ should provide the examiner with a precise listing of the Veteran's specific periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). A retirement points summary will not suffice. Based upon a review of the record, the examiner should address the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that any current neck disability manifested during service, or is otherwise causally or etiologically related to, or aggravated by, a qualifying period of service including any injury sustained during any verified period of INACDUTRA. In rendering the opinions, the examiner must consider and discuss the statements of the Veteran and his fellow service members regarding the onset and continuity of the symptoms of his back and neck disabilities. The examiner must consider and discuss the August 1993 service treatment record which reflect complaints of neck pain. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.