Citation Nr: 21015485 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-08 806 DATE: March 17, 2021 ORDER New and material evidence having been received, the Veteran's claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDING OF FACT 1. A March 2004 Board of Veteran’s Appeals (Board) decision denied the Veteran’s claim of entitlement to service connection for a low back disability (previously characterized as intervertebral disc syndrome); this decision was not appealed and became final. 2. In June 2010, the Veteran filed a petition to reopen his previous denial. 3. The evidence received since the March 2004 decision is not cumulative nor redundant of evidence previously submitted in support of the Veteran’s claim of entitlement. CONCLUSIONS OF LAW 1. The March 2004 Board decision, which denied entitlement to service connection for a low back disability, is final. 38 U.S.C. § 7105(c); §§ 3.104, 20.302, 20.1103. 2. Evidence received since the March 2004 Board decision is new and material; thus, the Veteran’s claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Air Force from August 1965 to January 1969. These matters appear before the Board on appeal of September 2010 and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In March 2019, the Board issued a decision denying the Veteran’s claims of entitlement to service connection for a right shoulder disability and reopening his claim of entitlement to service connection for a low back disability. The Veteran appealed the Board’s March 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 order, the Court granted a July 2020 Joint Motion for Remand (JMR) submitted by the parties. The March 2019 Board decision remanded the Veteran’s claim of entitlement to service connection for a cervical spine disability. The Board directed the Agency of Original Jurisdiction (AOJ) to obtain a new VA examination to determine the nature and etiology of any cervical spine disability. In October 2019, VA requested the examination. In October 2019, the VA examination was completed and associated with the record. The Board finds substantial compliance with its March 2019 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a low back disability The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen claims of service connection for left hip replacement, left carpel tunnel syndrome, right carpel tunnel syndrome, and heart disease is as stated on the title page. Regardless of the AOJ’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board finds that the evidence supports reopening the Veteran’s previously denied claim of service connection for a low back disability. The Board notes that initially claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran requested that his previously denied claim be reopened in a letter submitted through his representative dated June 8, 2010. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen the previously denied claim, the evidence before VA at the time of the prior final Board decision in March 2004 consisted of the Veteran’s service treatment records, DD-214, military personnel records, March 1985, May 1987, November 2003 VA examinations, December 1999 and October 2000 rating decisions, a May 2000 private opinion, an April 2001 lay statement from J.B., State of Tennessee disability determination records, Social Security Administration (SSA) records, private treatment records from Saint Thomas Hospital, private medical records from Centennial Medical Center, and private treatment records from Neurological Surgeons, PC. Since the March 2004 decision, evidence associated with the file includes a May 2010 private opinion, private treatment record from Radiology Inc., March 2012 and October 2014 VA examinations, VA treatment records from June 2007 to DATE, a March 2014 statement from the Veteran, a November 2014 statement from N.R.B., private treatment record from Three Gables Surgical Hospital, October 2018 hearing testimony, and a February 2021 appellate brief. The Board finds that the May 2010 private opinion, VA treatment records, private treatment records, March 2012 and October 2014 VA examinations, March 2014 Veteran’s statement and November 2014 buddy statement, hearing testimony, and appellate brief are new and have not previously been reviewed by agency decision makers. While the VA and private treatment records and Veteran’s statement are not material, the May 2010 private opinion, March 2012 and October 2014 VA examinations statement are material. The Veteran’s claim was denied because there was no evidence establishing a nexus between his current low back disability and his military service. Consequently, any new evidence received must support the unestablished fact necessary to substantiate the claim. The May 2010 private opinion and March 2012 and October 2014 VA examinations directly support the unestablished fact; thus, the May 2010 private opinion and the two VA examinations are new and material. Accordingly, the Veteran’s claim of entitlement to service connection for a low back disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. As noted above, the Court granted a JMR in its July 2020 Order. The parties asserted that the Board erred by finding that VA met its duty to assist. In a March 2004 VA treatment note, the Veteran reported a surgery of the right shoulder completed by Dr. Starkweather. The parties assert that there is no indication in the record that VA attempted to assist the Veteran in obtaining these records. Accordingly, a remand is necessary to obtain these records. Further, the parties assert that the Board failed to explain whether the October 2014 VA examination is adequate. The parties assert that the October 2014 VA examiner found no objective evidence to support a diagnosis but later noted that his complaints of shoulder pain may be naturally occurring arthritis. The examiner provided a negative nexus opinion, in part, on the Veteran not having reported trauma or precipitating events in-service. However, the Veteran testified during his hearing that he experienced soreness and stiffness in his shoulders while in service. Consequently, the Board finds that the October 2014 VA examination is inadequate. Accordingly, a new VA examination is necessary to determine the nature and etiology of any right shoulder disability, including a May 2005 diagnosis that indicates radiculopathy. 2. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he is entitled to service connection for a low back disability. Specifically, he contends that he injured his back in service and has continued to experience pain since separation. The Board notes that the Veteran has undergone five VA examinations since he initially filed his claim in August 1984. In March 1985, the Veteran was diagnosed with chronic lumbosacral sprain, but there was no opinion discussing the nature and etiology of the diagnosis. During a May 1987 VA examination, the Veteran was diagnosed with “history of back injury.” There was no opinion regarding the nature and etiology of the disability. The radiological report associated with the May 1987 VA examination noted minimal compression deformities which appear old. The Veteran underwent VA examination again in September 2003. The Veteran was diagnosed with lumbar spinal stenosis with involvement of his L4 and L5 right-sided nerve roots. The initial examination did not include an opinion regarding the nature and etiology of the diagnosis; however, the examiner completed an addendum opinion in November 2003. The examiner concluded that the Veteran’s low back disability was less likely than not related to his military service because there was a gap of 15 years between separation and his newest complaints of back pain and because there is evidence of a work injury which the Veteran claimed was the cause of his back pain. The examiner specifically said, “I believe this is probably a new process and probably not related to his complaint of lumbar strain in service; however, I did not have conclusive evidence to refute or confirm this.” The Veteran underwent VA examination in March 2012. He was diagnosed with degenerative disc disease (DDD) of the lumbar sacral spines, L5 and S1 left and right-sided neural foraminal stenosis, and lumbar sacral spinal radiculopathy. The examiner opined that these conditions were less likely than not related to military service; however, the examiner’s rationale was a timeline of the Veteran’s back injuries. The Veteran underwent VA examination most recently in October 2014. The examiner diagnosed the Veteran with low back strain, but determined the diagnosis was not related to service because he had interceding events since his separation, including a work-related accident in the early 1980s. The Veteran was treated several times in service for low back pain, weakness, and muscle spasms. Specifically, in an August 1968 service treatment note, the impression was chronic back pain. None of the VA examiners considered this finding in-service. Additionally, a May 2010 private opinion indicated that the Veteran’s ongoing back issues may have originated during his time in the military. Accordingly, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any and all low back disabilities the Veteran is diagnosed with. The examiner should consider the in-service treatment note indicating the Veteran’s low back pain was chronic. 3. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he is entitled to service connection for a cervical spine disability. Specifically, the Veteran contends that he injured his neck in service. The Veteran underwent VA examination in October 2019. The Veteran was diagnosed with cervical degenerative disc disease and spinal fusion. The examiner opined that it was less likely than not related to his military service because it was more likely than not related to his age and low back disability. The October 2019 VA examiner’s opinion reasonably raises a secondary service connection theory of entitlement. However, as noted above the Veteran’s claim for service connection to a low back disability is remanded for a new VA examination. Finally, because a decision on the remanded issue of service connection for a low back disability could significantly impact a decision on the issue of service connection for a cervical spine disability, the issues are inextricably intertwined. A remand of the claim of entitlement to service connection for a cervical spine disability is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Starkweather. Make two requests for the authorized records from Dr. Starkweather, unless it is clear after the first request that a second request would be futile. 2. After the above development, schedule the Veteran for a VA examination for his right shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any right shoulder disability at least as likely as not related to service? Provide a rationale to support the opinion(s). 3. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran’s low back disability at least as likely as not related to service, including chronic back pain? Provide a rationale to support the opinion(s). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.