Citation Nr: 21008895 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 19-35 925 DATE: February 18, 2021 ORDER Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability is granted. Whether new and material evidence has been submitted to reopen a claim for service connection for a neck disability is granted. Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. In a September 2015 rating decision, the regional office (RO) denied entitlement to service connection for a back disability; the Veteran did not appeal this decision or submit new and material evidence within a year of its issuance. 2. Subsequent evidence received since the prior final denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim for a back disability. 3. In a September 2015 rating decision, the RO denied entitlement to service connection for a neck disability; the Veteran did not appeal this decision or submit new and material evidence within a year of its issuance. 4. Subsequent evidence received since the prior final denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim for a neck disability. 5. The Veteran’s back disability is at least as likely as not etiologically related to her active service. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been submitted to reopen a claim for service connection for a back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for whether new and material evidence has been submitted to reopen a claim for service connection for a neck disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2009 to February 2010, and from June 2012 to October 2012. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2020. That transcript has been associated with the record. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § § 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. New evidence means existing 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999) but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability In a September 2015 rating decision, the RO denied the Veteran’s claim for service connection for a back disability because there was no nexus between the Veteran’s condition and service. The RO noted that the Veteran’s records showed that she sustained injuries to her neck and back during a period that was not considered active duty. Her records did not show that her condition was permanently worsened as a result of service. Subsequently, the Veteran did not submit a notice of disagreement, or submit new and material evidence within one year, and therefore, this decision became final. At the time of the September 2015 rating decision, the RO considered the Veteran’s compensation claim and her service treatment records. Since that time, the Veteran has undergone a VA examination and submitted lay statements in support of her claim. Notably, in her November 2018 VA examination, an examiner determined that the Veteran’s back condition was at least as likely as not incurred in or caused by the claim in-service injury, event, or illness. The examiner reasoned that given the Veteran’s history, physical examination and review of the files, the Veteran suffered back pain while in service. The examiner noted the Veteran’s car accident in 2011. In addition, in January 2019, a buddy statement provided that the Veteran was released from active duty training on several occasions due to back and neck pain that prevented her from accomplishing her military duties. In consideration of the above, the Board finds that new and material evidence has been received to reopen the claim for service connection for a back disability. The received evidence since the September 2015 rating decision includes a medical opinion regarding the etiology of the Veteran’s back disability, which pertains to an unestablished fact necessary to substantiate the claim. The file additionally contains lay statements credibly supporting the Veteran’s contentions that her disability was caused by an event in service. Accordingly, the claim for service connection for a back disability is reopened. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a neck disability In a September 2015 rating decision, the RO denied the Veteran’s claim for service connection for a neck disability because there was no nexus between the Veteran’s condition and service. The RO noted that the Veteran’s records showed that she sustained injuries to her neck and back during a period that was not considered active duty. Her records did not show that her condition was permanently worsened as a result of service. Subsequently, the Veteran did not submit a notice of disagreement, or submit new and material evidence within one year, and therefore, this decision became final. Since that time, the Veteran has undergone a VA examination and submitted lay statements in support of her claim. Notably, in her November 2018 VA examination, the examiner determined that the Veteran’s neck condition was at least as likely as not due to or the result of the Veteran’s back condition. In addition, in January 2019, a buddy statement provided that the Veteran was released from active duty training on several occasions due to back and neck pain that prevented her from accomplishing her military duties. In consideration of the above, the Board finds that new and material evidence has been received to reopen the claim for service connection for a neck disability. The received evidence since the September 2015 rating decision includes a medical opinion regarding the etiology of the Veteran’s neck disability, which pertains to an unestablished fact necessary to substantiate the claim. The file additionally contains lay statements credibly supporting the Veteran’s contentions that her disability was caused by an event in service. Accordingly, the claim for service connection for a neck disability is reopened. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 3. Entitlement to service connection for a back disability The Veteran contends that her back disability began during active service. Specifically, the Veteran contends that she began having back pain while at McGuire Air Force Base (AFB), and in Kuwait in 2012. See e.g., November 2018 VA examination. The Veteran’s records show that she was treated for injuries associated with a motor vehicle accident in May 2011, not during a period of active duty service. At that time, the Veteran was noted as having suffered from a back sprain. Additional treatment records show that in March 2012, the Veteran was released to return to duty with no restrictions. In November 2018, the Veteran was afforded a VA examination. The examiner confirmed that the Veteran had a current diagnosis of thoracolumbar spine strain, sprain. The examiner determined that the Veteran’s back condition was at least as likely as not incurred in or caused by the claim in-service injury, event, or illness. The examiner reasoned that given the Veteran’s history, physical examination and review of the files, the Veteran suffered back pain while in service. In January 2019, a buddy statement from the Veteran’s supervisor provided that the Veteran was released from active duty training on several occasions due to back and neck pain that prevented her from accomplishing her military duties. In another January 2019 buddy statement from a fellow servicemember, the servicemember provided that she witnessed the Veteran being sent home by her supervisor for medical reasons she endured during active duty. In January 2019 correspondence from the Veteran, she clarified that during her instances of back and neck pain, she was released from active duty for the day and given half hour break increments. She further reported that it became embarrassing to constantly report these pains while performing military active duties, and as a result, she did not frequently report most of her inquiries to the sick hall so that she would not be deemed unfit in front of the other airmen. In November 2019, the Veteran submitted a letter from her primary physician regarding her back and neck disabilities and their relation to her active service. The letter explained that during the Veteran’s duties, she was exposed to numerous musculoskeletal risks. The physician opined that it was at least as likely as not that these tasks led to the Veteran developing back and neck disabilities. As to back pain, the physician explained that the Veteran’s back pain is chronic and daily and had not responded to chiropractic therapy or medications. The physician concluded his letter by stating again that he believed that the Veteran’s disability was due to her intense time of service from October 2012 to October 2013. The Veteran submitted another buddy statement in November 2019 from her superintendent in the Airlift Wing Chaplin Corps. The Veteran’s superintendent once again reported that the Veteran was released from active duty on several occasions due to back and neck pain. The superintendent also reported that during the Veteran’s time on active duty service between 2012-2013, she complained about pain in her back and neck. She made these complaints during PT and during her details. While not a medical professional, the Veteran’s superintendent opined that he believed her disabilities were the direct result of her active duty service. In December 2020, the Veteran testified at a Board hearing. She testified that earlier in her military career, around 2009 to 2010, she would carry equipment that ranged in weight, up to 80 pounds. Around that time, she began noticing back pains and popping in the back, but she did not think much of it. Around 2012 when she was assigned to the Honor Guard, the Veteran reported that she really began noticing the pain on a level where it hurt to stand, or she would feel a sharp pain in her lower back just from moving in a certain way. She reported that she began treatment for her pain at Brooklyn VAMC around 2015. She clarified that she did not get relief at that time, so she sought out other care, and eventually went back to the VA to see a chiropractor. The Veteran testified that her back pain fluctuated between a 3 to a 7 out of 10 on a scale measuring pain. The Board finds that the Veteran has met the elements for service connection for a back disability. It is clear that the Veteran has a current back disability, as shown in her November 2018 VA examination. In addition, the Board finds that the multiple lay statements of record submitted on behalf of the Veteran, and by the Veteran, support the contention that she suffered from back pain during active service due to a back disability. Although this information is not explicitly denoted in the Veteran’s service treatment records, the Board finds the statements of record to be credible and persuasive. Lastly, the record contains two nexus statements relating the Veteran’s back condition to service. In November 2018, a VA examiner found that the Veteran’s back disability was related to service. The examiner provided an appropriate rationale, and the Board finds that this opinion is highly probative. In addition to this opinion, the Veteran has submitted a statement from her private physician finding that her back condition was more likely than not related to service. While the Veteran’s physician incorrectly noted the dates of the Veteran’s active service, the Board finds that in conjunction with the November 2018 VA examiner’s opinion and the other evidence of record, the opinion is probative with respect to the Veteran’s back disability. The Board acknowledges that the Veteran was involved in a motor vehicle accident in 2011 while she was not on active duty. Nonetheless, the Veteran has testified that she began experiencing back pain during her first tour of duty in 2010. See Hearing Transcript. In addition, as discussed above, there are probative nexus opinions of record which find that the Veteran’s disability is linked to her service. In fact, the November 2018 VA examiner noted the Veteran’s car accident and still concluded that the Veteran’s disability was related to her active service. As such, the Board finds that the information of record is sufficient to grant service connection. In consideration of the above, the Board resolves all doubt in favor of the Veteran and finds the probative evidence of record demonstrates that the Veteran’s back disability was caused by her active service. Thus, service connection for a back disability is warranted. See 38 U.S.C. § 5107(b); see also 38 C.F.R. §§ 3.102, 3.303; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. The Veteran contends that her neck disability is due to her active service. Alternatively, she claims that her neck disability is secondary to her back disability. Specifically, she has asserted that in 2012 she began having neck pain from lifting coffins on a daily basis, which took a toll on her neck. See November 2018 VA Examination. The Veteran’s records show that she was treated for injuries associated with a motor vehicle accident in April 2011, not during a period of active duty service. Additional treatment records show that in March 2012, the Veteran was released to return to duty with no restrictions. In November 2018, the Veteran was afforded a VA examination. The examiner determined that the Veteran’s neck condition was at least as likely as not due to or the result of the Veteran’s back condition. The examiner reasoned that given the Veteran’s history, physical examination, the neck condition was not “due” to the Veteran’s back condition. In January 2019, a buddy statement from her supervisor provided that the Veteran was released from active duty training on several occasions due to back and neck pain that prevented her from accomplishing her military duties. In another January 2019 buddy statement from a fellow servicemember, the servicemember provided that she witnessed the Veteran being sent home by her supervisor for medical reasons she endured during active duty. In January 2019 correspondence from the Veteran, she clarified that during her instances of back and neck pain, she was released from active duty for the day and given half hour break increments. She further reported that it became embarrassing to constantly report these pains while performing military active duties, and as a result, she did not frequently report most of her inquiries ot the sick hall so that she would not be deemed unfit in front of the other airmen. In November 2019, the Veteran submitted a letter from a physician regarding her back and neck disabilities and their relation to her active service. The letter explained that during the Veteran’s duties, she was exposed to numerous musculoskeletal risks. The physician opined that it was at least as likely as not that these tasks led to the Veteran developing back and neck disabilities. As to neck pain, the physician reiterated the Veteran’s reports that she attempted to deal with her neck pain on her own during service in the Honor Guard. The physician also detailed the ways in which the Veteran had unsuccessfully attempted to treat her neck pain, only to continue to suffer from chronic daily neck pain. The physician concluded his letter by stating again that he believed that the Veteran’s disability was due to her intense time of service from October 2012 to October 2013. The Veteran submitted another buddy statement in November 2019 from her superintendent in the Airlift Wing Chaplin Corps. The Veteran’s superintendent once again reported that during the Veteran was released from active duty on several occasions due to back and neck pain. The superintendent also reported that during the Veteran’s time on active duty service between 2012-2013, she complained about pain in her back and neck. She made these complaints during PT and during her details. While not a medical professional, the Veteran’s superintendent opined that he believed her disabilities were the direct result of her active duty service. The Veteran testified at a Board hearing in December 2020. She testified that she was not sure if her neck condition was included in her back condition. She also reported her car accident, stating she was not sure if her neck issues were aggravated by that accident. The Veteran testified that she was not having neck pain before her car accident, but she had trouble differentiating pain from her back. Ultimately, the Veteran indicated she did not know whether it was her back or her neck that hurt. The Veteran also testified that her neck could have been aggravated by her second period of service, but she was not sure. The Board finds that the November 2018 VA opinion is not adequate for appellate purposes. While the examiner provided a rationale, the rationale is in conflict with the examiner’s opinion. The examiner opined that the Veteran’s neck condition was at least as likely as not due to or the result of her back condition, but reasoned that the Veteran’s neck condition was not due to her back condition. These statements are in conflict. As such, the opinion is not adequate. Similarly, the Board finds that the November 2019 letter from the Veteran’s physician is unclear and as such not sufficient for appellate review for the Veteran’s neck claim. While the physician determined that the Veteran’s service caused her neck disability, the physician misstated the Veteran’s dates of active service. Therefore, while this opinion finds a nexus between the Veteran’s disability and service, the Board finds that with respect to the Veteran’s neck disability, the opinion is too faulty when considered with the other evidence of record. In addition, at the Veteran’s December 2020 hearing, the Veteran testified that she was not sure if her neck condition was included in her back condition. The Veteran also testified that she was not having neck pain before her car accident, but that she had trouble differentiating pain from her back. Overall, the Board finds that there is not a medical opinion of record determining whether the Veteran’s neck disability is separate from her back disability, and any causation or relationship between the two conditions. On remand, the RO should obtain an opinion clearly denoting the etiology of the Veteran’s neck disability, and any relationship to the Veteran’s service, her motor vehicle accident, and/or her back disability. The matters are REMANDED for the following action: 1. Obtain a VA opinion from an appropriate clinician to determine the etiology of the Veteran’s neck disability. An examination may be scheduled if the clinician deems it necessary, and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should opine as to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s neck disability had its onset during her period of service from October 2009 to February 2010, or is otherwise related to any incident of service, to include as a result of heavy lifting during her period of active duty from October 2009 to February 2010? (b.) If the Veteran’s neck disability is not found to be related to her period of active duty from October 2009 to February 2010, did it clearly and unmistakably preexist her period of service from June 2012 to October 2012? (c.) If the Veteran’s neck disability preexisted her period of service from June 2012 to October 2012, is it clear and unmistakable (obvious or manifest) that the Veteran’s neck disability WAS NOT aggravated by the Veteran’s period of service from June 2012 to October 2012? In other words, please determine whether it is clear and unmistakable that there was NO increase in disability during service. (d.) If the Veteran’s neck disability did not preexist her period of service from June 2012 to October 2012, is it at least as likely as not (50 percent probability or greater) that the Veteran’s neck disability had its onset during her period of service from June 2012 to October 2012, or is otherwise related to any incident of service, to include as a result of heavy lifting during her period of active duty from June 2012 to October 2012? (e.) Whether it is at least as likely as not that the Veteran’s neck disability was caused by her service-connected back disability? (f.) Whether it is at least as likely as not that the Veteran’s neck disability was aggravated beyond its natural progression, by her service-connected back disability? The examiner should note that the absence of in-service evidence of symptoms is not always fatal to a service connection claim and should consider the Veteran’s reports and lay statements. If there is another likely etiology for the Veteran’s disability, that should be stated. Any opinion expressed should be accompanied by a complete rationale. The examiner should provide a complete rationale and explanation for all opinions expressed. If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this is so and state whether the inability to provide the needed opinion is due to the limits of medical knowledge of missing evidence. The examiner should ensure that the Veteran’s entire relevant medical history is reviewed. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, Associate 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.