Citation Nr: 21005525 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-62 091 DATE: February 1, 2021 ORDER The petition to reopen the previously denied claim for service connection for cervical spine disability is granted. The petition to reopen the previously denied claim for service connection for headaches is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for headaches as secondary to cervical spine disability is remanded. FINDINGS OF FACT 1. An unappealed January 2011 rating decision denied entitlement to service connection for degenerative disease of the cervical spine; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim.. 2. An unappealed July 2008 rating decision denied entitlement to service connection for headaches; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The January 2011 rating decision denying the claim to service connection for degenerative disease of the cervical spine is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. 2. The July 2008 rating decision denying the claim to service connection for headaches is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to September 1980 and from May 1984 to May 1995. This appeal comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified before a Veterans Law Judge (VLJ). A hearing transcript is associated with the record. It is noted that the VLJ who presided at that hearing is no longer employed by the Board. A November 2018 Board letter notified the Veteran, and his representative, of this and provided him the opportunity for another hearing before another VLJ. See BVA Letter (November 2020). The Veteran’s representative responded to this letter, indicating that another hearing is not desired in this appeal. See Third Party Correspondence (December 2020). A December 2018 Board decision denied the Veteran’s petition to reopen the previously denied claim for service connection for a headaches and degenerative disease of the cervical spine. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (JMR) and, in a September 2019 Court Order, the Court granted the JMR, vacating the Board’s December 2018 decision and remanding the matters for compliance with the JMR. Pursuant to the Court’s Order and the JMR directives, the Board will consider the issue of service connection for headaches only as secondary to cervical spine disability, and will not consider them on the bases of direct service connection. See Carter v. Shinseki, 26 Vet. App. 534, 541 (2014) (“A joint motion for remand, when drafted properly, identifies... clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases both administrative and judicial efficiency.”), vacated on other grounds, 794 F.3d 1342 (2015). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for headaches. Issues 1 & 2: The Board concludes that the July 2008 rating decision denying the claim for entitlement to service connection for headaches and the January 2011 rating decision denying the claim for entitlement to service connection for cervical spine disability are final; and that new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). 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. 38 C.F.R. § 3.156 (a). The regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A July 2008 rating decision denied service connection for headaches because the evidence of record did not show that the Veteran’s headaches were incurred in or caused by service. VA notified the Veteran of this decision in an August 2008 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. A January 2011 rating decision denied service connection for degenerative disease of the cervical spine because the evidence of record did not show that it was incurred in or caused by service, and there was no evidence that it manifested to a compensable degree within one year of discharge from service. VA notified the Veteran of this decision in a January 2011 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence associated with the claims file since the prior final disallowances includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims. In this regard, there is a lay statement, specifically, the Veteran’s testimony at his April 2017 hearing, reflecting that the Veteran has been experiencing continuous neck pain since combat injury in Iraq. See Hearing Transcript (April 2017). The Veteran’s wife also testified that she witnessed the Veteran complaining of neck pain since they were married in around 2007. Id. This evidence was not previously considered by decision-makers and tends to support the Veteran’s theory of entitlement. For the purpose of establishing whether new and material evidence has been received alone, the credibility of the evidence is presumed. See Shade, supra. The Veteran, via his attorney, has also submitted a private medical opinion regarding the etiology of the Veteran’s cervical spine disability. Therefore, as a prior evidentiary defect has been cured, the recent evidentiary submission is considered new and material. With regard to the Veteran’s headaches, the Veteran testified that his headaches originate from his cervical spine pain, and that his physicians have suggested that during treatment. See Hearing Transcript (April 2017). A new theory of entitlement, alone, may not serve as a basis to reopen the matter unless it is accompanied by new and material evidence supporting that theory. Velez v. Shinseki, 23 Vet. App. 199 (2009); Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008) (While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108). In this case, the Veteran has provided testimony to the continuity of cervical spine symptoms since service, which, he claims, cause his headaches. As stated above, the Board finds that this evidence is sufficient to reopen his previously denied claim for service connection for cervical spine disability. The Veteran’s testimony of neck pain radiating to his head is evidence that was not previously considered by decision-makers and tends to support the Veteran’s theory of entitlement. Additionally, the Veteran’s VA treatment records indicate that headaches, specifically, cervicogenic and occipital neuralgia, are from cervical degenerative disc disease. See CAPRI (September 2017). Therefore, as a prior evidentiary defect has been cured, the recent evidentiary submission is considered new and material. Accordingly, the petitions to reopen the claims are granted. Lastly, the Board also acknowledges that in March 2013 and February 2014 VA associated service department records. The applicable law provides that: 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 paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156 (c)(1). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records (STRs) and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. However, here, the Board finds that the newly associated service department records are not relevant for the purposes of reconsidering the Veteran’s cervical spine disability claim. In this instance, the service department records do not indicate or reveal that the Veteran’s knee disabilities were incurred in or were caused by service, which as discussed above, was the basis for the previous denial. Although the medical evidence shows that in July 1994, after hitting a “grate” while playing “b-ball,” the Veteran sustained a laceration to his head and complained of neck pain, and was assessed with “r/o cervical injury,” the Veteran’s May 2008 VA headaches examination refers to that July 1994 injury, indicating that these STRs were available for review prior to final denials. See STR-Medical (February 2014); VA Examination (May 2008). In other words, the newly associated service department records, in the context of 38 C.F.R. § 3.156(c)(1), are not “relevant” because they speak to a matter in issue (i.e. a matter in dispute). See Kisor v. Shulkin, 869 F.3d 1360, 1368-69 (Fed. Cir. 2017), vacated on other grounds, sub nom. Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Thus, the Board will not reconsider the Veteran’s cervical spine disability and headaches claims pursuant to 38 C.F.R. § 3.156(c). REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 3. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he has been experiencing continuous neck pain since combat injury in Iraq. See Hearing Transcript (April 2017). The Veteran’s wife also testified that she witnessed the Veteran complaining of neck pain since they were married in around 2007. Id. STRs show that, in July 1994, after hitting a “grate” while playing “b-ball,” the Veteran sustained a laceration to his head and complained of neck pain. See STR-Medical (February 2014). He was taken to the emergency room out of precaution, given suture laceration, and assessed with “r/o cervical injury.” Id. At the time of separation from service in January 1995, the Veteran’s physical showed normal findings for “spine, other musculoskeletal.” See STR-Medical (February 2014). He reported swollen or painful joints, dizziness, depression, chronic or frequent colds and head injury. Id. He did not report any neck problems. Although an October 2020 private medical opinion was submitted to support the appeal, the Board finds that it is inadequate for adjudication for purposes. The October 2020 medical opinion reflects that the Veteran has had cervical degenerative disc disease since at least 2009 and that, in his opinion, the Veteran’s “1994 injures were the proximate cause of the eventual development of cervical DDD.” See Third Party Correspondence (October 2020). The opinion indicated that the Veteran “developed worsening cervical spine pain and symptoms consistent with the expected progression of post traumatic cervical DDD.” Id. While Dr. P. Carey, MD, provided the above opinion, it is inadequate because it provides no rationale for the conclusion reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Dr. Carey referred to literature review, but did not detail the findings he referred to and relied exclusively on general medical research. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner’s conclusion). Moreover, the opinion recited relevant medical research/literature, but did not fully address any facts specific to the Veteran as to the relevant research findings or conclusions. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion’s rationale may not be based solely on general medical articles with discussion of facts specific to the claimant). Notwithstanding, given the above, there is sufficient competent and credible evidence to warrant remand for a VA examination and medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). VA has not yet obtained an examination or medical opinion in this matter. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for headaches is remanded. The Veteran’s treating physicians have attributed his headache symptoms to his nonservice-connected cervical spine disability. In March 2012, the Veteran complained of worsening headaches and the physician noted that he suspected the Veteran had occipital neuralgia. In May 2012, the Veteran complained of occasional headaches. He indicated that he was not sure how long he has had headaches. An impression of chronic headaches, most likely cervicogenic despite bilateral nature, was provided. Here, the Board finds the Veteran’s claim for service connection for headaches is inextricably intertwined with the issue of entitlement to service connection for cervical spine disability, which is being remanded for further adjudication. Therefore, consideration of entitlement to service connection for headaches must be deferred at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain all VA treatment records dated from June 2020 to the Present. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any cervical spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms; if there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. The opinion should reflect, among other things, include a discussion of the Veteran’s documented history, including a July 1994 in-service injury, where he reported neck pain, and. The examiner must opine on: (a.) Whether any cervical spine disability is at least as likely as not related to an in-service injury, event, or disease, including a July 1994 in-service injury. (b.) For arthritis of the cervical spine, whether it at least as likely as not (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. (c.) The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. 3. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.