Citation Nr: 21021592 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-16 065 DATE: April 13, 2021 ORDER Whether new and material evidence has been received to reopen the claim for service connection for a cervical spine disability is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. In a May 2009 rating decision, the regional office denied the Veteran’s claim for entitlement to service connection for a cervical spine disability; the Veteran did not appeal this decision or submit new and material evidence within a year of its issuance. As such, the May 2009 rating decision is final. 2. Subsequent evidence received since the May 2009 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim for a cervical spine disability. CONCLUSION OF LAW 1. The May 2009 rating decision, which denied entitlement to service connection for a cervical spine disability, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been submitted to reopen the claim of service connection for a cervical spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1976 to November 1977. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in an unappealed regional office (RO) decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). 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 evidence not previously submitted to agency decision-makers. 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim for service connection for a cervical spine disability The Veteran’s claim for service connection for a cervical spine disability was initially denied in a May 2009 rating decision. The RO denied the Veteran’s claim because there was no evidence that the Veteran’s cervical spine degeneration disease occurred in or was caused by his active service. The Veteran did not appeal this decision, nor submit new and material evidence within one year, and as such, the decision became final. In December 2013, the Veteran filed a supplemental claim for compensation including his claim for service connection for a cervical spine disability. In October 2014, the Veteran’s claim was denied. The Veteran filed a notice of disagreement in May 2015. The RO denied the Veteran’s claim once again in a January 2017 statement of the case (SOC). The Veteran appealed his claim to the Board in a March 2017 Form 9. As the Veteran timely appealed the October 2014 rating decision, the most recent prior final denial is from May 2009. As such, in order to reopen the claim, there must be new and material evidence submitted since that date. At the time of the May 2009 denial, the RO was in receipt of evidence including the Veteran’s service treatment records and VAMC Los Angeles medical treatment records. The evidence since the May 2009 denial includes a VA examination of the Veteran’s spine. In a September 2014 VA examination, the examiner confirmed that the Veteran had a cervical spine disability, but determined that it was less likely than not that the Veteran’s disability was incurred in or caused by military service. In addition to the VA examination, the Veteran also testified at a Board hearing in December 2020. At that hearing, the Veteran testified that he had no prior neck or back issues prior to service, and that he has continuously suffered from cervical pain since service. The Board finds that this evidence was not previously considered by the agency decisionmakers and is not cumulative or redundant, as the content of this evidence is different than the previously submitted evidence on which the May 2009 decision was predicated. Further, the recently submitted evidence relates to an unestablished fact necessary to substantiate the claim; specifically, the evidence relates to the second and third prongs of service connection, an in-service injury, event, or disease, and a connection between the Veteran’s current disability and service. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. As such, the new evidence meets the low reopening standard of Shade. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that while serving on active duty in Germany, he slipped and fell down a stairwell backwards, injuring his neck and low back. The Veteran has testified that he was taken to the sick bay and a physician focused on his shoulder, but his neck was also examined. Even though he complained about his back as well, the examiners focused on his shoulder because it was more severe. The Veteran explained that at the time, he went to the doctor following his fall and he was suffering from headaches; the doctor diagnosed the Veteran with a dislocated shoulder, although the Veteran also reported neck and back pain. He was prescribed Tylenol and bedrest for two weeks. The Veteran further testified that it was frowned upon to go to the sickbay too frequently. He was discharged from service about two months after his fall. The Veteran contends that he has been suffering from his back disabilities since service. The Veteran’s service treatment records show that the Veteran reported back pain and muscle spasms in his back in July 1977, and complained of headaches in August 1977. The Veteran has testified that he believes he may have first sought VA treatment for his back around 1978 or 1979. The Board notes that there are currently no medical records from this period shortly after service. The earliest medical records appear to be from 2003, wherein the Veteran was seen for cervical neck pain. The Veteran underwent a VA examination in September 2014. The examiner confirmed that the Veteran had a cervical spine disability, but determined that it was less likely than not that the Veteran’s disability was incurred in or caused by military service. The examiner reasoned that there was no information in the Veteran’s service treatment records to confirm or indicate the Veteran’s account of trauma to his lower back. Additionally, the Veteran last served in 1977, and the c-file was silent regarding any cervical pain or condition that persisted since the incident. The examiner opined that the Veteran’s cervical spine condition was most probably associated with his occupation or activities after service, or due to his increased BMI. In a March 2021 statement from the Veteran’s sister, she reported that when the Veteran returned home from service she remembered him suffering from back, neck, elbow, and wrist pain. She further reported that the Veteran told her that his injuries were sustained when falling down a set of stairs in Germany, and that he was given Ibuprofen for the pain. The Board finds that the September 2014 VA examination is inadequate for appellate review. The examiner improperly discounted lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, as noted above by the Board, the Veteran’s service treatment records do contain reports of back pain treated while in service, namely in July 1977. As such, the examiner’s reliance on the absence of contemporaneous medical evidence is not only prejudicial, but inaccurate. In consideration of the above, a new VA opinion should be obtained regarding the etiology of the Veteran’s cervical spine disability. The Board also notes that the Veteran has testified that he began receiving VA medical attention for his back disability as early as 1978 or 1979, following service. Upon remand, the RO should also attempt to obtain these records. 2. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that while serving on active duty in Germany, he slipped and fell down a stairwell backwards, injuring his neck and low back. The Veteran has testified that he was taken to the sick bay and a physician focused on his shoulder, but his neck was also examined. Even though he complained about his back as well, the examiners focused on his shoulder because it was more severe. The Veteran explained that at the time that he went to the doctor following his fall, he was suffering from headaches; the doctor diagnosed the Veteran with a dislocated shoulder, although the Veteran also reported neck and back pain. He was prescribed Tylenol and bed rest for two weeks. The Veteran further testified that it was frowned upon to go to the sickbay too frequently. He was discharged from service about two months after his fall. The Veteran contends that he has been suffering from his back disabilities since service. The Veteran’s service treatment records show that the Veteran reported pain and muscle spasms in his back in July 1977, and complained of headaches in August 1977. The Veteran has testified that he believes he may have first sought VA treatment as early as 1978 or 1979. The Veteran underwent a VA examination in September 2014. The examiner confirmed that the Veteran had a lumbar spine disability, but opined that the condition was less likely than not incurred in or caused by his active service. The examiner reasoned that there was no information in the Veteran’s service treatment records to confirm or indicate the Veteran’s account of trauma to his lower back. Additionally, the examiner noted that the Veteran last served in 1977, and his c-file was silent regarding low back pain or a condition that had persisted since the incident. The examiner opined that the Veteran’s back condition was most probably associated with his occupation or activities after service or due to his increased BMI. In a March 2021 statement from the Veteran’s sister, she reported that when the Veteran returned home from service she remembered him suffering from back, neck, elbow, and wrist pain. She further reported that the Veteran told her that his injuries were sustained when falling down a set of stairs in Germany, and that he was given Ibuprofen for the pain. The Board finds that the September 2014 VA examination is inadequate for appellate review. The examiner improperly discounted lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Moreover, as noted above by the Board, the Veteran’s service treatment records do contain reports of back pain treated while in service, namely in July 1977. As such, the examiner’s reliance on the absence of contemporaneous medical evidence is not only prejudicial, but inaccurate. In consideration of the above, a new VA opinion should be obtained regarding the etiology of the Veteran’s lumbar spine disability. The Board also notes that the Veteran has testified that he began receiving VA medical attention for his back disability as early as 1978 or 1979, following service. Upon remand, the RO should also attempt to obtain these records. 3. Entitlement to a TDIU is remanded. The Veteran contends that he is not able to work due to his disabilities, including his cervical and lumbar spinal disabilities. Specifically, the Veteran contends that he ceased working in 2005 due to his neck and back disabilities. See Hearing Transcript at 3. As the Board is remanding the Veteran’s claims for service connection for his lumbar and cervical spine conditions, his claim for entitlement to a TDIU must also be remanded because it is inextricably intertwined. Thus, the Board defers consideration of the Veteran’s claim for a TDIU until further development is complete. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records, to include records from the years immediately following service in 1978 and 1979. If the records are determined to be unavailable, the AOJ should provide appropriate notice to the Veteran (and document it in the claims file). 2. Obtain a VA addendum opinion from an appropriate clinician to determine the etiology of the Veteran’s lumbar and cervical spine disabilities. 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 claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current lumbar spine disability is related to his active duty service. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current cervical spine disability is related to his active duty service. The examiner should elicit from the Veteran a complete history of his respective back disability symptomatology, including any in-service symptomatology and treatment, as well as his complete post-service history of symptoms and treatment. The examiner should also consider the Veteran’s medical records from service and following service, including the Veteran’s in-service reports of back pain and spasms dated July 1977. In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding in-service incurrence and continuity of symptomatology. The examiner’s opinion must reflect consideration of the Veteran’s reports as to his history and symptomatology. If the examiner chooses to reject his reports, the examiner must provide a reason for doing so, and his lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. 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.