Citation Nr: 21005296 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-54 768 DATE: February 1, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for a cervical spine condition is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a left shoulder arthralgia is remanded. FINDING OF FACT An unappealed March 2016 rating decision that denied the claim for service connection for a cervical spine condition is final; the evidence received since the March 2016 rating decision relates to an unestablished fact necessary to substantiate the claim for a cervical spine condition. CONCLUSION OF LAW The March 2016 rating decision is final; new and material evidence has been received to reopen the claim of service connection for a cervical spine condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2006 to October 2007 and April 2010 to June 2011, with periods of active duty for training (ACDUTRA) from January 1998 to July 1998, from February 2001 to March 2002, from June 15, 2016 to June 29, 2016, from January 29, 2018 to February 2, 2018, and from February 5, 2018 to February 8, 2018. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision and a November 2017 administrative decision issued by the Department of Veterans Affairs (VA). By way of background, the issues initially certified to the Board on appeal were entitlement to service connection for bilateral shoulder arthralgia and tendonitis, and entitlement to service connection for lumbago. In June 2018, the Board remanded those issues for further development. In April 2019, the RO granted the Veteran service connection for lumbago and for right shoulder arthralgia. As those are full grants as to those issues, they are no longer on appeal before the Board. During the pendency of the appeal, the appeal of service connection for a cervical spine condition was separately certified to the Board. The Board has merged the remaining issues into a single appeal and will be taking action on all of the issues herein. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a cervical spine condition Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, 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. Historically, in a March 2016 rating decision, the RO denied the Veteran’s claim for a cervical condition because the RO indicated that the Veteran’s condition neither occurred in nor was caused by service. The Veteran did not appeal that decision within one year, and that decision became final. 38 U.S.C. § 7105. In March 2017, the Veteran submitted a new claim for a cervical condition. With that claim, he submitted records from the Puerto Rico Army National Guard Element Joint Force Headquarters. In an August 2017 administrative decision, the RO continued the prior denial of the cervical spine condition, and advised the Veteran that he needed to submit new and material evidence to reopen the claim. In November 2017, the Veteran submitted a claim for service connection for cervical cord compression. In a November 2017 administrative decision, the RO expressed that new and material evidence had not been submitted. In December 2017, the Veteran submitted a NOD and expressed that his cervical cord compression occurred on June 24, 2016 on “Active Duty Title 10 orders performing Army physical fitness while deployed in Kingston, Jamaica.” The Veteran noted that a record of acute medical care and MRI results were attached to the claim and are available for review. In addition, the Veteran expressed that a DD214 was not included in the claim since his orders were less than 30 days. Since the Veteran’s denial in March 2016, the Veteran submitted military personnel records which confirmed that he was ordered by the Secretary of the Army to active duty for training from June 15, 2016 to June 29, 2016. In addition, the Veteran submitted treatment records showing that the Veteran reported neck pain during his period of active duty for training while in the National Guard. See Medical Treatment Records Received on March 2017. This evidence was not of record at the time of the March 2016 rating decision and it relates to an unestablished fact necessary to substantiate the Veteran’s claim. Therefore, 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 cervical spine condition is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine condition is remanded. The Veteran contends that he injured his cervical spine during a period of active duty training while in the Army National Guard. See December 2017 NOD. In addition, the Veteran noted that he was an Army helicopter pilot since 2001. The Veteran expressed that degenerative changes in the cervical spine are significantly more prevalent in helicopter pilots because of poor body posture, whole body vibrations, and gear and helmet weight. See June 2020 VA Form 9. The Board notes that when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA to warrant service connection for that disability. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 U.S.C. §§ 101 (22), (a) and (c); 38 C.F.R. §§ 3.6 (d). Here, the Veteran submitted records from the Puerto Rico Army National Guard Element Joint Force Headquarters that showed that the Veteran was ordered to active duty from training from June 15, 2016 to June 29, 2016. In a June 25, 2016 screening note of acute medical care, the Veteran’s chief complaint was neck pain. The Veteran submitted records dated in November 2016 that noted findings suggestive of cord compression. As for the Veteran’s argument that his cervical spine condition is related to him being a helicopter pilot, the Board finds that the Veteran’s DD214 notes that the Veteran’s primary specialty was in aviation. To date, the Veteran has not been afforded a VA examination and medical opinion to assess the nature and etiology of cervical spine condition. Therefore, remand is warranted to schedule the Veteran for a VA examination and to obtain a medical opinion on his behalf. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a left shoulder arthralgia is remanded. In June 2018, the Board remanded the issue of entitlement to service connection for bilateral shoulder arthralgia and tendonitis in order to provide the Veteran a VA examination. The Veteran was afforded a VA examination in October 2018 and March 2019. The October 2018 VA examination failed to discuss the Veteran’s left shoulder condition. The March 2019 VA examiner noted that the Veteran had a diagnosis of left shoulder impingement syndrome and calcific tendinosis. The examiner opined that the Veteran’s left shoulder condition was less likely than not related to service. The examiner stated that the Veteran started with left shoulder symptoms in year 2015, which is several years after service. In a May 2019 addendum opinion, the examiner expressed that the Veteran’s left shoulder condition is less likely than not related to service-connected right shoulder sprain and impingement syndrome. The examiner stated the medical evidence does not support the fact that having shoulder sprain and impingement syndrome causes impingement syndrome and calcific tendinosis at the contralateral shoulder joint. The examiner stated that they are two different anatomical sites with different bony structures and nerve supplies. When VA provides a medical examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007), see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion”).  The Board finds the March 2019 VA examination with addendum opinion in May 2019 to be inadequate. First, with regards to direct service connection, the examiner was requested to provide an opinion that considered the Veteran’s statements regarding the onset and continuity of symptomatology of a left shoulder condition since service. See June 2018 Board remand. Here, the examiner provided little rationale and failed to consider the Veteran’s lay statements when providing an opinion. With regards to secondary service connection, the Board finds the May 2019 addendum opinion to be inadequate as it failed to address the aggravation prong of secondary service connection. Thus, on remand an addendum opinion is requested. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s cervical spine condition. The claims file and a copy of this REMAND must be made available to the examiner for review. All indicated tests should be performed.   The VA examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s cervical spine condition is related to an in-service injury, or event during active duty, to include as due to the Veteran’s primary specialty in aviation, or any period of active duty for training (ACDUTRA) or inactive duty for training (INACDITRA). In making this determination the examiner must specifically consider and address the Veteran’s June 25, 2016 screening note of acute medical care for the Veteran’s neck pain, and a November 2016 treatment note indicating that there is evidence that the Veteran’s “cervical spine may be secondary to spasm or position.” In providing these opinions, the examiner should consider statements from the Veteran regarding the onset and continuity of symptomology. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. A complete rationale for all opinions rendered must be provided. 2. Obtain an addendum opinion from an examiner other than the March 2019 and May 2019 VA examiner. The claims file, include a copy of this REMAND, should be made available and reviewed by the examiner. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: Please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed left shoulder disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed left shoulder disability is (i) proximately due to or (ii) have been aggravated (worsened) by his service-connected right shoulder disability, to include as due to overuse of the left shoulder to compensate for the right shoulder pain/disability. The examiner should note that inquiries (i) and (ii) require two opinions: one on proximate causation and one on aggravation. In providing these opinions, the examiner should consider statements from the Veteran regarding the onset and continuity of symptomology since service. The examiner should discuss the Veteran’s contention that his left shoulder disability may be related to his primary occupational specialty in aviation. The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. A complete rationale for all opinions rendered must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Dermarkar 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.