Citation Nr: 21012480 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-07 130 DATE: March 4, 2021 ORDER Entitlement to service connection for ischemic heart disease (IHD), to include coronary artery disease (CAD), is granted. New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for a cervical spine disability. Entitlement to service connection for a cervical spine disability is granted. FINDINGS OF FACT 1. There is no affirmative evidence to rebut the presumption that the Veteran’s CAD is related to his exposure to herbicide agents while serving in the Republic of Vietnam. 2. A January 2004 rating decision reopened and denied the Veteran’s claim of service connection for a cervical spine disability. The Veteran did not appeal that decision and new and material evidence was not received within one year of notice of its issuance. 3. Evidence received more than one year since the January 2004 rating decision has not been previously considered and relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a cervical spine disability. 4. There is clear and unmistakable evidence that the Veteran’s cervical spine disability preexisted service. 5. There is not clear and unmistakable evidence that the Veteran’s cervical spine disability was not aggravated by active service. 6. The Veteran’s cervical spine disability had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for CAD are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for a cervical spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1111, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1964 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing. At the hearing, the VLJ advanced the Veteran’s claim on the docket. See Hearing transcript at 2. 1. Entitlement to service connection for IHD, to include CAD, is granted. The Veteran relates his CAD to exposure to herbicide agents while serving in the Republic of Vietnam. See January 2017 VA Form 9; November 2016 Notice of Disagreement; November 2016 VA Form 21-4138, Statement in Support of Claim; August 2016 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain diseases shall be service-connected if the Veteran was exposed to an herbicide agent during service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Ischemic heart disease is listed under 38 C.F.R. § 3.309(e) as a disability being presumptively related to herbicide agent exposure. Ischemic heart disease is defined as “acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina.” 38 C.F.R. § 3.309(e). Here, the Veteran has a current diagnosis of coronary artery disease, which is one of the listed diseases subject to presumptive service connection as a result of herbicide agent exposure. See March 2002 VA physical examination note; August 2002 VA treatment note. Thus, the question becomes whether the Veteran was exposed to herbicide agents in service. In this regard, the RO has already confirmed that the Veteran served in the Republic of Vietnam and his exposure to herbicide agents is, therefore, conceded. See March 2018 rating decision at 2. The Board will not disturb this favorable finding. In sum, the evidence shows that the Veteran has a current diagnosis of CAD and that he was exposed to herbicide agents in service. Critically, there is no affirmative evidence to rebut in-service incurrence of CAD. 38 C.F.R. § 3.307(d). Thus, all elements of presumptive service connection for CAD as a result of herbicide agent exposure are established, and the benefit sought on appeal is granted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 2. New and material evidence has been received to reopen the Veteran’s claim of entitlement to service connection for a cervical spine disability. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. 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). In September 1971, the Veteran filed a claim for service connection for a cervical spine disability, which was denied in an October 1971 rating decision on the basis that the evidence failed to show in-service aggravation of a preexisting cervical fracture. The Veteran did not file a Notice of Disagreement (NOD) within one year of notification of the October 1971 denial, and new and material evidence was not received within this period. Accordingly, the October 1971 rating decision is final. See 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. In September 2000, the Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for a cervical spine disability. In an October 2000 rating decision, the RO denied the claim on the basis that new and material evidence had not been received to reopen the claim. The Veteran did not file a NOD within one year of notification of the September 2000 denial, and new and material evidence was not received within this period. Accordingly, the October 2000 rating decision is also final. See id. In March 2002, the Veteran again filed a petition to reopen his previously denied claim of entitlement to service connection for a cervical spine disability. In January 2004, the RO issued a rating decision reopening the previously-denied claim and denying service connection for a cervical spine disability on the basis that the evidence failed to show in-service incurrence of the disability. The January 2004 decision also found that the Veteran’s cervical spine disability was more likely caused by a 1995 motor vehicle accident. The Veteran did not file a NOD within one year of notification of the January 2004 denial, and new and material evidence was not received within this period. Accordingly, the January 2004 rating decision is also final. See id. Evidence received more than one year after the most recent final January 2004 rating decision includes the Veteran’s January 2021 credible hearing testimony that he experienced issues with his neck in service that progressively worsened from service to the time he suffered a motor vehicle accident in 1995. See Hearing transcript at 8. This evidence is new in that it was not considered in the January 2004 denial. This evidence is material in that it relates to the Veteran’s continuous symptoms of a cervical spine disability that manifested since service separation in 1971, which means the Veteran had experienced symptoms for more than 20 years before the 1995 motor vehicle accident. Therefore, the previously denied claims are reopened. 3. Entitlement to service connection for a cervical spine disability is granted. The Veteran relates his current cervical spine disability to injuries he sustained during active service. See Hearing transcript at 4-5. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Arthritis is a chronic disease for which service connection is warranted if there is a continuity of symptomatology. See 38 C.F.R. §§ 3.303 (b), 3.309(a). A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). In this case, there is a question as to whether the Veteran’s cervical spine disability preexisted his military service. In this regard, the Board notes that on the Veteran’s March 1964 enlistment Report of Medical History, he endorsed a history of “fractured neck” sustained in 1961. The record also contains the Veteran’s January 2021 hearing testimony that he fractured his neck in a diving accident before service and was paralyzed for six months. See Hearing transcript at 3. He additionally testified that he felt fully recovered at the time he enlisted into service. Id. at 4. Notably, the Veteran’s March 1964 entrance examination is absent of any mention of a neck fracture on physical examination. In fact, the March 1964 enlistment examination indicates head, face, neck, and scalp were normal. In other words, the Veteran’s cervical fracture was only noted by history. Thus, with respect to the Veteran’s cervical spine disability, the presumption of soundness attaches, and VA must demonstrate by clear and unmistakable evidence that the disability both preexisted service and was not aggravated in service. See Wagner, supra. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Regarding the first prong, there is clear and unmistakable evidence that the Veteran’s cervical spine disability preexisted service. Specifically, his March 1964 enlistment Report of Medical History indicated he fractured his neck in 1961 and the Veteran himself testified as to the same. See Hearing Transcript at 3. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any ‘increase in disability [was] due to the natural progress’ of the preexisting condition.” Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Here, the Board finds there is not clear and unmistakable evidence that the Veteran’s pre-existing cervical spine disability was not aggravated by military service. Specifically, a June 1971 service treatment record (STR) indicates the Veteran complained of neck pain. Upon examination, it was found that the Veteran had an “old but pronounced compression fracture of C5 with angulation.” (Emphasis added). The STR noted that the injury existed prior to service, but that it was “service aggravated,” and the Veteran was ultimately medically discharged as a result of this service-aggravated disability. See June 1971 Report of Medical Board; June 1971 Statement of Patient Concerning the Findings of a Medical Board; September 1971 DD Form 214. Given the Medical Board’s finding of an in-service aggravation of the Veteran’s cervical spine disability, and the fact that his in-service x-ray revealed that the Veteran’s old C5 fracture was “pronounced,” the Board cannot find there is clear and unmistakable evidence that preexisting cervical spine disability was not aggravated by service, and the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. Thus, this case turns on a current disability and evidence that the current disability was caused, incurred, or otherwise related to service, also known as a nexus. With respect to the first element of service connection, a current disability, a July 2020 VA treatment note indicates cervical spine osteoarthritis, with prior cervical spine surgeries in 2009 and 2003. See January and December 2015 VA primary care notes. Thus, the first element of service connection is met. With respect to the second element of service connection, in-service incurrence, the Veteran credibly testified that he injured his neck in service from falling off a ladder and landing on his back on the ship deck and also while playing football. See Hearing transcript at 4-6. The Board has no reason to doubt the veracity of the Veteran’s report in this regard, which has been consistent for decades. See April 2003 VA mental disorders examination (noting a ladder accident aggravating his neck disability in service). Thus, the second element of service connection is met. The first two elements having been met, this case turns on the third element of service connection, a causal relationship between the disability and in-service injury, otherwise known as a nexus. In this regard, there are no nexus opinions of record. However, the Veteran qualifies for consideration under 38 C.F.R. § 3.303(b), as he has been diagnosed with a chronic disease (arthritis) specifically enumerated under 38 C.F.R. § 3.309(a). See July 2020 VA treatment note (indicating cervical osteoarthritis); May 2003 VA treatment record (indicating cervical degenerative disk and joint disease); February 2002 VA treatment note (indicating degenerative joint disease of the cervical spine); May 2002 VA treatment note (indicating degenerative disk disease). The Board acknowledges that the Veteran was involved in a motor vehicle accident in 1995 that caused cervical strain. See February 1995 private hospital discharge summary. Contemporaneous with the accident, the Veteran was admitted to the hospital and underwent imaging studies. Imaging of the cervical spine revealed “old post-trauma changes and compression fractures of the cervical spine with slight posterior subluxation of the body of C-5, probably chronic,” and “foraminal narrowing” and “reversal of usual cervical lordotic curve centered at C-5” that were “thought to be the result of previous, remote trauma.” (Emphasis added). Although this 1995 incident could represent an intervening cause of the Veteran’s cervical spine disability, the Board emphasizes that contemporaneous imaging demonstrated the presence of a chronic disability related to remote trauma at that time, which does not support a finding that the 1995 accident caused his current neck disability and does not rule out his in-service neck injury as the source of his cervical spine disability. Moreover, the Veteran competently and credibly testified at his Board hearing that he experienced continuous cervical pain for over 20 years since separating from service to the time of the accident, which is supported by the contemporaneous evidence of record, namely his 1971 claim for service connection for his cervical spine disability, filed decades before the 1995 accident. See Hearing transcript at 8; see also October 1971 VA Form 21-526e, Application for Compensation or Pension at Separation from Service. A Veteran’s lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the type of condition that is observable by a lay person. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Here, the Board finds that the Veteran’s testimony regarding his persistent neck pain since service, as detailed above, is competent and credible and supported by the more contemporaneous evidence of record, and continuity of cervical spine symptomatology is established. 38 C.F.R. §§ 3.303(b), 3.309(a). Accordingly, service connection for a cervical spine disability, diagnosed as osteoarthritis, is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.