Citation Nr: 21025519 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-60 985 DATE: April 28, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a right knee disorder is denied. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a back disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a neck disorder is granted. Service connection for a back disorder is granted. Service connection for a neck disorder is granted. FINDINGS OF FACT 1. The Veteran served on active duty from March 2010 to December 2012. 2. An unappealed November 2013 rating decision denied service connection for right knee patellofemoral syndrome (PFS), back pain, and neck pain. 3. Evidence received since the November 2013 rating decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the underlying claims of entitlement to service connection for a right knee disorder. 4. Evidence received since the November 2013 rating decision is new and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a back disorder and a neck disorder. 5. The Veteran reported chronic back pain in service, now diagnosed as lumbosacral strain, mild bilateral facet arthropathy at L3-5, which has continued since. 6. The Veteran reported chronic neck pain in service, now diagnosed as left sided uncovertebral and facet arthropathy at C3-7, which has continued since. CONCLUSIONS OF LAW 1. The November 2013 rating decision, which denied service connection for right knee PFS, back pain, and neck pain, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2020). 2. Evidence submitted to reopen the claim of entitlement to service connection for a right knee disorder is not new and material, and the claim is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 3. Evidence submitted to reopen the claim of entitlement to service connection for a back disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 4. Evidence submitted to reopen the claim of entitlement to service connection for a neck disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 5. A back disorder was incurred during service. 38 U.S.C. §§ 1110, 1112, 5103, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 6. A neck disorder was incurred during service. 38 U.S.C. §§ 1110, 1112, 5103, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In February 2021 the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. At the hearing the Veteran indicated that her last name had changed because she had gotten married. She was instructed to submit her marriage certificate; however, as no marriage certificate has been received, her last name remains as listed on the title page of this decision. New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Service connection for right knee PFS, back pain, and neck pain was initially denied in a November 2013 rating decision. Service connection for right knee PFS was denied on the basis that it existed prior to service and was not aggravated by service. Service connection for back and neck pain disorders was denied because there was no evidence of a diagnosis of a back or neck disorder. The Veteran did not file a notice of disagreement with the November 2013 and new and material evidence was not received within one year of the rating action. Therefore, the November 2013 rating decision is final. Right Knee Disorder The evidence added to the record since the November 2013 rating decision continues to note that the Veteran reported right knee pain; however, the record does not link any current right knee disorder to service, nor does it reflect that any preexisting right knee disorder was aggravated during service. Indeed, at the hearing before the undersigned, the Veteran testified that she did not have any recent treatment or other new and material evidence regarding the right knee claim. As such, while the evidence added to the record is new, it is not material as it does not present a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for a right knee disorder is not reopened and the appeal is denied. Back and Neck Disorders With regard to the claims for service connection for back and neck disorders, the evidence added to the record since the November 2013 rating decision is new and material. In this regard, the evidence added to the record includes private medical evidence showing current diagnoses of back and neck disorders. As such, this evidence shows a diagnosis where there was previously none and therefore it raises a reasonable possibility of substantiating the claims. Accordingly, the claims are reopened and will be considered on the merits. Service Connection for Back and Neck Having reopened the claims for back and neck disorders, the Board will consider them on the merits. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. The Veteran claims service connection is warranted for her back and neck disorders because they are related to in-service injury. She has also alleged ongoing symptoms involving the back and neck since the in-service injury. A review of the record reflects current diagnoses of back and neck disorders. Specifically, an August 2015 VA examination noted a diagnosis of lumbosacral strain and a January 2020 private treatment record noted diagnoses of left sided uncovertebral and facet arthropathy at C3-7 and mild bilateral facet arthropathy at L3-5. Additionally, a May 2016 private MRI reflected a diagnosis of minimal disc bulging and mild facet arthropathy bilaterally at L3-4 and L4-5. Therefore, current diagnoses have been shown. As to an in-service incurrence, service treatment records (STR) noted repeated complaints of back and neck pain in 2011 and 2012. In December 2011, the Veteran complained of neck pain since a fall six months earlier. A January 2012 MRI of the cervical spine was unremarkable. A January 2012 noted reflected that because the MRI was normal, it was probably muscular and she was advised to have dry needling, acupuncture, trigger point injections. The record also reported numerous profiles, including for cervicalgia. Therefore, the second element of service connection has been met. As to a medical nexus, the record also contains three private medical opinions in favor of the claims. Notably, a June 2020 letter from Dr. D. indicated that the Veteran had multilevel disc herniations which are not normally found in a 32 year old female who was otherwise healthy. Dr. D. opined that the herniations were related to trauma the Veteran sustained from the 20 foot fall in service. A January 2020 private physician, Dr. O. opined that the Veteran did not experience chronic neck or back pain prior to service and her current chronic back and neck pain were in line with an early degenerative process as evidenced by MRI. Other than the Veteran’s female gender and injury in service, she has no other risk factors for these conditions. Therefore, Dr. O. found that within a reasonably degree of medical certainty that the Veteran’s chronic neck and back pain were as likely as not related to her in-service injury. Similarly, a March 2020 private opinion from Dr. P. indicated that the Veteran most likely had continued back pain due to the injury in service. Thus, there are three medical opinions in favor of the claims and the STRs document neck and back pain in service. Nothing in the record contradicts the Veteran’s contentions that her back and neck pain began during service in 2011 and continued ever since, ultimately being diagnosed as lumbosacral strain, uncovertebral and facet arthropathy at C3-7, and minimal disc bulging and mild facet arthropathy bilaterally at L3-4 and L4-5. There is no medical opinion against the claims and the Veteran submitted two lay statements from fellow veterans who witnessed her in-service fall/pain. Based on the above, entitlement to service connection for a back disorder and a neck disorder is warranted and the appeals are granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.