Citation Nr: 21021781 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-45 478 DATE: April 14, 2021 ORDER Entitlement to service connection for degenerative arthritis of the cervical spine is granted. New and material evidence having been received, the claim of entitlement to service connection for a low back disorder is reopened. Entitlement to service connection for degenerative arthritis and degenerative disc disease of the lumbar spine is granted. REMANDED Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. The most probative evidence is at least in equipoise as to whether the Veteran’s degenerative arthritis of the cervical spine had its onset during or is etiologically related to military service. 2. An October 2013 rating decision denied entitlement to service connection for a low back disorder. The Veteran filed a timely Notice of Disagreement, but did not perfect an appeal to the Board by submitting a timely appeal within 60 days of a Statement of the Case in March 2015; thus, the October 2013 decision is final. 3. Evidence received since the October 2013 rating decision is new and relates to an unestablished fact necessary to substantiate the claim of service connection. 4. The most probative evidence is at least in equipoise as to whether the Veteran’s degenerative arthritis and degenerative disc disease of the lumbar spine had its onset during or is etiologically related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the cervical spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The October 2013 rating decision which denied entitlement to service connection for a neck disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.200. 3. New and material evidence has been received to reopen the claim of service connection for a low back disorder; therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156(a). 4. The criteria for entitlement to service connection for degenerative arthritis and degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2003 to February 2005, with additional service in the Army Reserve and National Guard. The Board thanks him for his honorable military service. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in January 2020. A transcript of the hearing is associated with the claims file. An October 2013 rating decision denied entitlement to service connection for a low back disorder. The Veteran filed a timely Notice of Disagreement in November 2013. The agency of original jurisdiction (AOJ) issued a Statement of the Case in March 2015; however, the Veteran did not file a timely appeal within 60 days. Therefore, the decision became final. 38 U.S.C. §§ 7104, 7105. New and material evidence has been received and the claim is reopened. See Hearing Transcript, January 2020, Medical Treatment – Non-Government Facility, February 2020. The Board is aware that the AOJ determined that a June 2015 rating decision denying service connection for a neck or cervical disorder became final. However, the AOJ received relevant VA treatment records within one year of the June 2015 decision. Therefore, the claim remained pending and new and material evidence is not required to reopen that claim. See 38 C.F.R. § 3.156(b). The Board also notes that VA received a records request under the Privacy Act from an attorney who is not accredited to represent veterans before VA. However, as the Veteran has not expressed that he wishes for this individual to represent him in his Board appeal and the Board is not denying any of his claims herein, there is no prejudice in proceeding with an adjudication of the appeal. Legal Criteria – Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for a neck disorder The Board finds that the most probative evidence is at least in equipoise as to whether the Veteran’s neck or cervical spine disorder is related to military service. Therefore, a grant of service connection is warranted. The Veteran has been diagnosed with degenerative arthritis of the cervical spine. See C&P Exam, July 2017. Service medical records show that the Veteran sought treatment for neck and upper body pain after working on a tire in March 2004. The diagnosis listed was a trapezius/cervical strain. Thus, the question for the Board is whether there exists a nexus between the Veteran’s current cervical spine degenerative arthritis and the injury during military service. The Veteran submitted a medical opinion from M.M., a certified nurse practitioner, dated January 2020. M.M. reported that he had been the Veteran’s primary care clinician since 2010 and had reviewed his medical records back to that date. He observed that the Veteran had suffered an injury during service, reportedly after changing a heavy vehicle tire when a winch cable snapped and the tire fell against his neck and right side. M.M. stated that he has seen many instances of a single back or neck injury causing problems for patients for the rest of their lives, and noted that the Veteran had reported ongoing pain since this injury. He concluded that it is more likely than not that the injury the Veteran suffered during service is the cause for his chronic neck and low back pain that continues to this day. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). Although there is some evidence against the claim, the Board finds that M.M.’s opinion places the evidence at least in relative equipoise as to whether the Veteran’s current neck disorder is related to the in-service injury. With the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for a neck or cervical spine disorder is warranted. See 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a low back disorder The Board finds that the most probative evidence is at least in equipoise as to whether the Veteran’s low back disorder had its onset during or is etiologically related to military service. Thus, the claim of service connection is granted. The Veteran has a current diagnosis of degenerative arthritis and degenerative disc disease of the lumbar spine. See C&P Exam, July 2017. He contends that this disorder is related to the previously mentioned injury while he was working on a vehicle tire in 2004. M.M. concluded that the Veteran’s low back disorder was more likely than not related to the aforementioned injury during military service. He provided an opinion based on his observations of the Veteran’s disorder and his experience as a medical professional. The Board finds his opinion to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In sum, probative evidence has been submitted to support each of the elements of service connection for a low back disorder. Accordingly, with resolution of reasonable doubt in the Veteran’s favor, the Board finds that the claim may be granted. REASONS FOR REMAND 3. Entitlement to service connection for a respiratory disorder is remanded. The Board finds that this claim must be remanded for a clarifying medical opinion considering the Veteran’s diagnosed respiratory disorders. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). During the last VA examination for a respiratory disorder in April 2017, the examiner diagnosed a resolved upper respiratory infection. However, VA medical records show that the Veteran has since been given differential diagnoses of asthma and chronic obstructive pulmonary disease. See CAPRI, May 2018. As the examiner did not consider these disorders in the previous opinion, the Board finds that another VA examination is necessary. The matter is REMANDED for the following action: 1. Please obtain updated VA and non-VA treatment records. 2. Please schedule the Veteran for a VA examination regarding the nature and etiology of any respiratory disorders. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that any diagnosed respiratory disorder, and specifically including (i) asthma diagnosed in 2017 and (ii) COPD diagnosed in 2017 had its onset during or is causally related to military service, to include environmental exposure to burn pits, sand, and dust? (b) Is it at least as likely as not that any respiratory symptoms are due to an undiagnosed illness? (c) Is it at least as likely as not that asthma, COPD and/or any other respiratory symptoms are a medically unexplained chronic multi-symptom illness? A complete rationale should be provided for all opinions. The examiner is asked to perform all necessary testing, and to consider and discuss relevant lay and medical evidence, to specifically include: • VA medical records, including reports of pulmonary function testing showing differential diagnoses of asthma and COPD in August 2017 • The Veteran’s lay contentions that a current respiratory disorder is related to exposure to burn pits, sand, and dust while serving in Iraq The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.