Citation Nr: 21030852 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-50 815 DATE: May 19, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for a neck disability is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a bilateral shoulder disability is reopened; to that extent only, the appeal is granted. As new and material evidence has been received, the claim for entitlement to service connection for a bilateral hip disability is reopened; to that extent only, the appeal is granted. Entitlement to service connection for a neck disability is granted. REMANDED Entitlement to service connection for a bilateral shoulder disability, to include as secondary to a neck disability, is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected right knee tendonitis, is remanded. FINDINGS OF FACT 1. In an April 2014 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a neck injury; the Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was received within one year of the decision, and the decision became final. 2. The evidence received since the April 2014 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a neck disability. 3. In an April 2014 rating decision, the RO denied the Veteran's claim for entitlement to service connection for numbness in shoulders and hands; the Veteran did not submit a NOD, no new and material evidence was received within one year of the decision, and the decision became final. 4. The evidence received since the April 2014 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral shoulder disability. 5. In an April 2014 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a bilateral hip disability; the Veteran did not submit a NOD, no new and material evidence was received within one year of the decision, and the decision became final. 6. The evidence received since the April 2014 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a bilateral hip disability. 7. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his currently diagnosed cervical spine degenerative joint disease (DJD) and degenerative disc disease (DDD) is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The April 2014 rating decision that denied the claim for entitlement to service connection for a neck injury is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen a claim for entitlement to service connection for a neck disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The April 2014 rating decision that denied the claim for entitlement to service connection for numbness in shoulders and hands is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 4. New and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The April 2014 rating decision that denied the claim for entitlement to service connection for a bilateral hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 6. New and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral hip disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for entitlement to service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1982 to April 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The July 2015 rating decision reopened the claims for service connection for a neck disability and a bilateral hip disability and denied the claims for service connection for a neck disability and a bilateral hip disability. Additionally, the RO denied service connection for a bilateral shoulder disability without addressing whether new and material evidence had been received to reopen the claim. Despite the RO's actions, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claims of entitlement to service connection for a neck disability, a bilateral shoulder disability, and a bilateral hip disability before addressing the claims on their merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran and his two sons, G.P. and M.P., testified before the undersigned Veterans Law Judge (VLJ) at a September 2020 Virtual hearing. A transcript of this hearing is of record. A review of the claims file shows that the Veteran's September 2017 VA Form 9 for the issues on appeal was received 63 days after his July 2017 statement of the case; therefore, his substantive appeal was not timely filed. However, the issues on appeal were certified to the Board and hearing before a VLJ was scheduled and held. Inasmuch as the RO took actions to indicate that the issues reflected above were on appeal, the requirement that a timely substantive appeal is deemed waived. Percy v. Shinseki, 23 Vet. App. 37 (2009). Following the July 2017 statement of the case, the Veteran submitted additional evidence in support of his appeal. The Veteran filed his substantive appeal in September 2017. Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board, because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2018). New and Material Evidence Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 19.20, 19.21, 19.22, 19.52. 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 means existing evidence not previously submitted to agency decisionmakers. 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 U.S. Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. 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 a claim for entitlement to service connection for a neck disability In an April 2014 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for a neck injury, because there was no evidence of a neck injury during service and no evidence that his neck condition occurred in or was caused by service. That decision is final. Since the Veteran's last prior final denial in April 2014, the record includes a November 2020 private opinion that the Veteran's current cervical spine disc disease is more likely attributed to his military service and most specifically a helicopter accident suffered in 1983. The Board finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The November 2020 private opinion will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for a neck disability is reopened. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral shoulder disability In an April 2014 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for numbness in shoulders and hands, because there was no evidence of complaints, treatment, or diagnosis for the condition during service, no evidence of an in-service event, disease, or injury, and no evidence that the condition occurred in or was caused by service. That decision is final. Since the Veteran's last prior final denial in April 2014, the record includes a December 2015 VA treatment record suggesting that the Veteran's current bilateral shoulder symptoms were associated with his neck pain and from wearing heavy combat gear during service. The Board finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The December 2015 VA treatment record will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for a bilateral shoulder disability is reopened. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral hip disability In an April 2014 rating decision, the RO denied the Veteran's original claim for entitlement to service connection to a bilateral hip disability, because there was no evidence of complaints, treatment, or diagnosis for the condition during service, no evidence of an in-service event, disease, or injury, and no evidence that the condition occurred in or was caused by service. That decision is final. Since the Veteran's last prior final denial in April 2014, the record includes an April 2015 lay statement indicating that his bilateral hip problems were caused by his service-connected right knee disability. The Board finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The April 2015 lay statement will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for a bilateral hip disability is reopened. Service Connection 4. Entitlement to service connection for a neck disability The Veteran asserts that his neck disability developed during active duty service. At a September 2020 Board hearing, the Veteran testified that in 1984, while serving at Fort Carson, he was in a Chinook helicopter crash after the transmission of the rear propeller went out, and the pilot had to perform an emergency landing, which resulted in a really hard crash to the ground. The Veteran said that when the helicopter crashed, he was wearing his helmet and backpack, which weighed about 80 pounds. His neck was jerked. Since he was a medic, he was responsible for caring for everybody else. He said that they were not rescued until four days later. He said that his platoon sergeant kept him from being able to seek treatment. Following service, the Veteran described being "incapacitated" by his neck problems. His two sons, G.P. and M.P., both testified that as children, they remembered the Veteran not being able to move, that he had "constant chiropractor appointments," and that he had tweaked his neck. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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 or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Notwithstanding the provisions relating to presumptive service connection, a Veteran may establish service connection for a disability with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The question before the Board is whether the Veteran's neck disability is etiologically related to active duty service. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a neck disability is warranted. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was Medical Specialist. Service records show that the Veteran served at Fort Carson from June 1983 to May 1984. The Veteran's service treatment records (STRs) document that he sought treatment for neck problems. In September 1985, the Veteran sought treatment for neck spasms on and off. A radiographic study was normal. A September 1986 STR reflects the Veteran's complaints of upper back, shoulders, and neck pain for the past one and a half weeks. He was diagnosed with muscle pain. His STRs do not include a separation examination. However, at a December 1989 periodic examination, the Veteran had normal clinical evaluation results and his associated report of medical history did not document any pertinent symptomatology. As a preliminary matter, the Board finds that based on the Veteran's competent and credible statements, his MOS as a Medical Specialist, and available service records showing that he served at Fort Carson at the time of the reported accident, the evidence tends to support the Veteran's account that he was involved in a helicopter crash during service. The evidence shows that the Veteran has a current diagnosis for central canal stenosis C3-C7 with multilevel foraminal stenosis and DDD. See May 2019 private treatment record. Private treatment records document the Veteran's treatment for neck pain from 1998 to 2020. In an April 2013 private opinion, the Veteran's private treating physician noted that a 2005 MRI demonstrated that the Veteran had moderate to severe degenerative changes that compressed directly on the spinal cord in the neck. The private treatment physician described how the Veteran has had a long history of severe on again and off again neck pain that radiated to his shoulders and upper arms, which began following his in-service helicopter crash. The private physician opined that the Veteran's severe spinal degeneration and cord compression that followed started with the helicopter accident in the Army. Because no treatment was rendered and no rehabilitation followed, the Veteran's soft tissue in the cervical spine did not heal correctly. As a result, the private physician found that DJD and DDD set in and was made that much worse with the heavy equipment he had to carry including his helmet, vest, ruck sack, and bag. The private treating physician explained that while working at a VA facility, he had seen multiple patients with similar injuries that left untreated over time rapidly degenerated leaving the patient in a severe amount of pain. The Board finds that the April 2013 private opinion provides the most probative evidence regarding the etiology of the Veteran's neck disability. On that basis, the Board finds that the private treating physician took into consideration the Veteran's account of his in-service injury and subsequent history of neck pain symptoms. Furthermore, the April 2013 private treatment physician discussed the Veteran's relevant medical history and relied on his experience dealing with similar injuries. Overall, the Board finds that given that there is no contrary opinion, the April 2013 private opinion is the most persuasive evidence. Taking into consideration the totality of the evidence, the Board finds that resolving all reasonable doubt in in favor of the Veteran, the evidence is at least in equipoise that his cervical spine DJD and DDD is etiologically related to his active duty service. Therefore, the Veteran's service connection claim must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to a neck disability, is remanded. The Veteran asserts that his bilateral shoulder disability developed during active duty service and was associated with the same helicopter accident, which caused his now service-connected neck disability. Alternatively, the Veteran asserts that his bilateral shoulder disability was caused by his service-connected neck disability. Available treatment records document that the Veteran had bilateral shoulder symptoms characterized by pain, numbness, and tingling. However, those records do not provide a definitive diagnosis to which to attribute those symptoms. Evidence suggests that the Veteran's bilateral shoulder disability may be related to cervical radiculopathy (April 2018 and May 2019 private treatment records) and right shoulder derangement (July 2016 VA treatment record). The record does not include a VA examination to confirm the Veteran's diagnosis. Because the evidence suggests that the Veteran has a current bilateral shoulder disability that may be related to his active duty service, or a service-connected disability, the Board finds that a remand is required to obtain a VA examination to confirm his diagnosis and to provide an etiological opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected right knee tendonitis, is remanded. The Veteran asserts that his bilateral hip disability began during active duty service in 1985, or alternatively, his bilateral hip disability was caused by his service-connected right knee tendonitis. At a March 2015 private clinic visit, the Veteran's private treatment physician discussed how the Veteran was walking more and more "straight legged" to avoid his knee giving out. The private physician discussed how the Veteran's altered gait would affect his right hip. Noting that the Veteran's right knee was weak, the private treating physician explained that knee and hip issues are often connected and can "feed each other." The private treating physician concluded that when the Veteran was weight bearing, the right knee was weak, which then affected the mechanics of his gait. This could in turn cause pain in the right hip. The Board finds that the private treating physician's opinion suggesting a link between the Veteran's right hip and his right knee was speculative and not based on a thoroughly reasoned analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also, Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, the Board finds that the March 2015 private opinion is not sufficient for adjudicative purposes. At a May 2015 VA examination, the Veteran was diagnosed with bilateral hip osteoarthritis and bilateral hip avascular necrosis. The VA examiner opined that the Veteran's bilateral hip disability was less likely than not proximately due to or the result of the Veteran's service-connected right knee tendonitis. The VA examiner provided a thoroughly reasoned analysis underlying the opinion. However, no opinion was provided that addressed the aggravation prong for secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Furthermore, given that the Veteran has asserted that his bilateral hip disability began during active duty service, a direct service connection opinion is also necessary for the Board to provide a fully informed decision. Accordingly, a remand is required to obtain a supplemental VA opinion. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's bilateral shoulder disability and bilateral hip disability that are not currently of record. 2. Schedule the Veteran for a VA joints and peripheral nerves examination by an appropriately qualified clinician to determine the nature and etiology of any bilateral shoulder disability. The examiner should respond to the following: (a.) Confirm the diagnosis for the Veteran's bilateral shoulder disability. In providing the diagnosis, the examiner should take into account the Veteran's reported symptoms of shoulder pain, numbness, and tingling. (b.) Is it at least as likely as not that the Veteran's bilateral shoulder disability is related to his active duty service? (c.) Is it at least as likely as not that the Veteran's bilateral shoulder disability is caused by his service-connected neck disability? (d.) Is it at least as likely as not the Veteran's bilateral shoulder disability is aggravated beyond its natural progression by his service-connected neck disability? In providing the above opinions, the examiner should address the Veteran's reports concerning the onset and continuity of his bilateral shoulder problems. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. Obtain an addendum opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's bilateral hip disability. The examiner should respond to the following: (a.) Is it at least as likely as not that the Veteran's bilateral hip disability was related to his active duty service? (b.) Is it at least as likely as not that the Veteran's bilateral hip disability was aggravated beyond its natural progression by his service-connected right knee tendonitis? In providing the above opinions, the examiner should address the March 2015 private treating physician's opinion. The examiner should also address the Veteran's reports concerning the onset and continuity of his bilateral hip problems. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, then send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.