Citation Nr: 21031740 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-06 826 DATE: May 24, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a back injury; to this extent, the appeal is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a neck injury; to this extent, the appeal is granted. Entitlement to service connection for degenerative disc disease of the cervical spine, claimed as residuals of a neck injury, is granted. Entitlement to service connection for a left shoulder strain is granted. REMANDED Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as residuals of a back injury, to include as secondary to service-connected degenerative disc disease of the cervical spine, is remanded. Entitlement to service connection for a disability manifested by left hand numbness, swelling, tingling and pain, to include as secondary to service-connected degenerative disc disease of the cervical spine or left shoulder strain, is remanded. FINDINGS OF FACT 1. Entitlement to service connection for residuals of a back injury and a neck injury were last denied by the RO in a November 2015 rating decision; the Veteran did not complete a substantive appeal or submit new and material evidence within one year. 2. Some of the evidence received since the November 2015 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims for service connection for residuals of a back injury and a neck injury. 3. Resolving all reasonable doubt in his favor, the Veteran's degenerative disc disease of the cervical spine is casually or etiologically due to his time in service. 4. Resolving all reasonable doubt in his favor, the Veteran's left shoulder strain is causally or etiologically due to his time in service. CONCLUSIONS OF LAW 1. The November 2015 rating decision that denied entitlement to service connection for residuals of a back and neck injury is final. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.105 (a), 3.156, 20.1103. 2. The evidence received since the November 2015 rating decision is new and material, and the Veteran's claims for service connection for residuals of a back and neck injury are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for degenerative disc disease of the cervical spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left shoulder strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1953 to July 1956, with additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in February 2021 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. Petition to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for residuals of a back injury. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for residuals of a neck injury. The Veteran seeks to reopen his previously denied claims for entitlement to service connection for residuals of a back injury and a neck injury. Notwithstanding a determination by the RO that new and material evidence has or has not been received to reopen the Veteran's claims, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 283 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The record with respect to the claims for service connection for a back injury and a neck injury were last denied in a rating decision of November 2015. The Veteran did not express timely disagreement or submit new and material evidence within one year and subsequently the rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claims for service connection may only be reopened if new and material evidence is submitted. In this instance, since the November 2015 rating decision denied the claims on the basis that the evidence did not demonstrate any in-service event, disease, or injury and there was no link between the Veteran's current diagnoses and his time in service, the Board finds that new and material evidence would consist of evidence of an in-service event and/or a nexus. The evidence received since the November 2015 rating decision consists of numerous records and documents. Importantly, a May 2018 VA treatment record discusses the Veteran's reported in-service motor vehicle accident and a VA physician opined that the Veteran's current arthropathies could be a result of which started in 1956. Additionally, the Veteran testified in February 2021 regarding several in-service injuries to his back and neck, including falling off a tank. As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claims of service connection for residuals of a back injury and neck injury. The Board determines that the claims are reopened. Service Connection 3. Entitlement to service connection for residuals of a neck injury. 4. Entitlement to service connection for a left shoulder disability. The Veteran seeks entitlement to service connection for residuals of a neck injury and a left shoulder disability. The Veteran asserts he was injured on several occasions during service, to include a Jeep accident. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran has current diagnoses of degenerative disc disease of the cervical spine and a left shoulder strain. See December 2019 VA examinations. As such, Shedden element (1), current diagnosis, is met for both claims. The Veteran's enlistment examination in September 1958 did not note any neck or shoulder abnormalities. The Veteran asserts that he was injured during service when the Jeep he was riding in had an accident and rolled over, injuring his neck. The Veteran testified that sleeping on cots and in tents during service further aggravated his injuries. He also testified that he fell off a tank and was also hit in the jaw with a baseball, which further aggravated his neck. Service treatment records verify that the Veteran was in a Jeep accident in 1954 and received "minor treatment." Service treatment records also confirm that he was hit in the mouth with a baseball in August 1955. The Veteran asserts that he has experienced pain in his neck and shoulder since his in-service injuries. The Board notes that the Veteran is competent to report and identify when he experienced pain, as pain is a symptom capable of lay observation. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the Board finds these statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, the Board notes that service treatment records verify the accidents in which the Veteran asserts his neck and shoulder were injured. The Veteran's account of his injuries has also been consistent from his original claim of service connection for injuries from the Jeep accident, which was received only 10 days after separation from service in July 1956. As such, the Board finds that Shedden element (2) has been satisfied for both claims. As for Shedden element (3), nexus, the Board finds that the evidence indicates the Veteran's current cervical spine disability and left shoulder disabilities are due to service. Of note, a May 2018 VA treatment note reports that while in service, the Veteran's Jeep overturned and he was ejected and injured his neck; he was transported to the Army Medical Center, treated, and discharged. The physician noted that since the accident, the Veteran has suffered from chronic neck pain and pain radiating down the shoulder, into the arm. The physician stated that the Veteran "has had significant degeneration since the accident in the Army and the consequent arthropathies could be a result that started in 1956." Similarly, in an April 2019 VA treatment record, the physician noted that the Veteran has chronic neck and shoulder pain. The physician recounted the Veteran's report of his in-service Jeep accident, and noted that the Veteran was afraid at the time to make waves and complain, so he was treated at the medical center and then discharged. The physician indicated that the Veteran has suffered from chronic neck pain and radiating shoulder pain since the accident. Based on this information, the physician opined that more likely than not the sustained chronic pain the Veteran has suffered for many years started at the time of his in-service motor vehicle accident in the military. The Board acknowledges the December 2019 VA negative nexus opinion. The examiner opined it was less likely than not that the Veteran's current cervical spine and left shoulder disorders are due to any injuries he may have incurred in military service as there was no documented chronicity during active duty and the documented onset diagnosis was in 2014. Importantly, the Board notes the examiner failed to consider and discuss the Veteran's lay statements that he has experienced pain since his in-service injuries. The Board finds the May 2018 and April 2019 VA physicians' opinions persuasive. The Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). The Veteran has current diagnoses, in-service events, and medical opinions that relate his current diagnoses to his time in service. As such, the Veteran's service connection claims for a cervical spine disability and a left shoulder disability are granted. REASONS FOR REMAND 5. Entitlement to service connection for degenerative disc disease of the lumbar spine, claimed as residuals of a back injury, to include as secondary to service-connected degenerative disc disease of the cervical spine. The Veteran seeks entitlement to service connection for residuals of a back injury. He asserts he injured his back during the Jeep accident in service, it was then further injured during a fall from a tank and aggravated by sleeping on a cot during service. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. Although VA treatment records contain positive nexus opinions linking his current neck and left shoulder to his in-service events, no medical provider has indicated specifically that his lumbar spine disorder is due to service or to a service-connected disability. The Board notes that the Veteran was afforded a VA examination in November 2019, at which time the examiner opined that the Veteran's lumbar spine disorder was less likely than not due to service as the documented onset of his diagnosis was 2013. No further rationale was provided. The Board finds this opinion is inadequate. On remand, an addendum opinion must be obtained that includes a thorough rationale. Additionally, on remand, a medical opinion should be obtained as to whether the Veteran's diagnosed lumbar spine disorder is secondary to his now service-connected cervical spine disability. 6. Entitlement to service connection for a disability manifested by left hand numbness, swelling, tingling and pain, to include as secondary to service-connected degenerative disc disease of the cervical spine or left shoulder strain. The Veteran seeks entitlement to service connection for a disability manifested by left hand numbness, swelling, tingling and pain. As a result of this decision, the Veteran is service connected for degenerative disc disease of the cervical spine and a left shoulder strain. The Veteran testified in February 2021 that he seeks service connection for his left hand, describing that his hand and fingers swelled up on several occasions and that he continues to experience numbness. Records indicate that a May 2018 VA treatment note indicates the Veteran reported a recent onset of left-hand numbness, swelling, pain and tingling. After examination, the Veteran was diagnosed with cervical radiculopathy. The Veteran also has a diagnosis of left median neuropathy. See November 2017 VA treatment note. The Veteran was afforded a VA examination in December 2019, at which time he was diagnosed with a left-hand strain and left thumb osteoarthritis. It does not appear that any neurological testing was conducted. The examiner opined that the Veteran's left-hand strain and left thumb osteoarthritis were less likely than not caused by the Veteran's military service or jeep accident. No opinion was provided as to whether these diagnosed disorders are secondary to his cervical spine disability or left shoulder disability. Furthermore, no opinion was provided regarding the etiology of the Veteran's additionally diagnosed disorders, to include cervical radiculopathy or left median neuropathy. As the Board has granted service connection for the Veteran's cervical spine disability and left shoulder disability, the Board finds that addendum opinions must be obtained on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain an addendum opinion for the Veteran's diagnosed degenerative disc disease of the lumbar spine. Following review of this remand and the claims file, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's degenerative disc disease of the lumbar spine: a) is causally or etiologically due to service, to include the documented jeep accident and/or asserted fall from a tank; or, b) is proximately due to or aggravated (beyond a natural progression) by his service-connected cervical spine disability. In providing these opinions, the examiner must acknowledge and discuss any lay evidence of a chronicity of symptoms. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain an addendum opinion for the Veteran's diagnosed cervical radiculopathy, left median neuropathy, left-hand strain and left thumb osteoarthritis. Following review of this remand and the claims file, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's cervical radiculopathy of the left upper extremity, left median neuropathy, left-hand strain, and left thumb osteoarthritis: (a) is causally or etiologically due to service, to include the documented jeep accident and/or baseball to the jaw; or, (b) is proximately due to or aggravated (beyond a natural progression) by his service-connected degenerative joint disease of the cervical spine and/or left shoulder disability. In providing these opinions, the examiner must acknowledge and discuss any lay evidence of a chronicity of symptoms. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.