Citation Nr: 21041020 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-43 624 DATE: July 7, 2021 ORDER The application to reopen the previously denied claims of entitlement to service connection for the Veteran's cervical and lumbar spine disabilities is granted. Entitlement to service connection for a cervical spine disability is granted. Entitlement to service connection for a lumbar spine disability is granted. VETERAN'S CONTENTIONS The Veteran contends that he should be service connected for his cervical and lumbar spine disabilities because they had their clinical onset during his active service. Specifically, the Veteran reported that he injured his neck when he was hit with a pole in the back of the head. See May 2001 Service Treatment Record; May 2021 Board Hear. Trans. pp. 2-3. The Veteran also reported that he injured his lower back when he twisted his back or when he was pinned between two pieces equipment. See Id. at 9. Additionally, the Veteran stated that since the initial in-service injuries, he has treated both conditions with BC powder daily, by going to see two chiropractors, using shoe inserts, and purchasing a Sleep Number bed. Id. at 11-22. FINDINGS OF FACT 1. The February 2006 and September 2007 rating decisions denied service connection for the Veteran's cervical and lumbar spine disabilities. The Veteran did not appeal either of these rating decisions. Evidence received since the February 2006 and September 2007 rating decisions relates to prior unestablished facts. 2. The Veteran has experienced chronic neck pain, currently diagnosed as related to cervical spondylosis with degenerative joint disease, since service. 3. The Veteran has experienced chronic lower back pain, currently diagnosed as related to lumbar spondylosis with degenerative joint disease, since service. CONCLUSIONS OF LAW 1. The February 2006 and September 2007 rating decisions are final; new and material evidence has been received to reopen the claim of entitlement to service connection for the Veteran's cervical spine and lumbar spine disabilities. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307. 3. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 2001. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his August 2017 VA Form 9. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. The application to reopen the previously denied claims of entitlement to service connection for cervical lumbar spine disabilities is granted. As indicated above in the Conclusion of Law section, the Board finds that new and material evidence has been received to reopen the previously denied claims of entitlement to service connection for cervical and lumbar spine disabilities. Accordingly, to this extent, the Board grants the Veteran's appeal. In support of this determination, the Board first notes that, in the February 2006 and September 2007 rating decisions, the RO denied service connection for the Veteran's cervical and lumbar spine disabilities. In these decisions, the RO concluded that there was no evidence of current diagnoses of a neck or back condition. The Veteran did not appeal either decision. Therefore, both the February 2006 and September 2007 rating decisions are final. See; 38 C.F.R. §§ 3.156(b), 20.1100.; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. Evidence is "new" if it was not previously submitted to agency decision makers. Evidence is "material" if, when viewed by itself or with other evidence previously of record, it relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 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). Since the February 2006 and September 2007 rating decisions, VA has received private treatment records from Family Medical Group of Texarkana and United Health & Wellness Clinic. The VA has also received testimony from the Veteran. This evidence is "new" as it consists of materials not previously submitted to agency decision makers. It is also "material" as it addresses the reasons for the prior denial. Specifically, the March 2015 private treatment record notes that the Veteran has degenerative joint disease of the cervical spine. See March 2015 Private Treatment Record. Additionally, the Veteran's private treating doctor noted that the Veteran had disc degenerative and spondylosis of the lumbar spine. See November 2017 Private Treatment Record. This evidence addresses the previously unestablished facts of a current disability. Accordingly, the Board finds that the application to reopen the previously denied claim of entitlement to service connection for the Veteran's cervical and lumbar spine disabilities must be granted. Service Connection Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 2. Entitlement to service connection for the Veteran's cervical spine is granted. After reviewing the evidence of record, the Board finds that service connection for the cervical spine disability is warranted in the instant case. Turning to the evidence of record, the Board finds that the Veteran's cervical spine disability was confirmed by the July 2017 VA examiner. See July 2017 VA Medical Opinion. Next, the Board finds that the evidence of record demonstrates an in-service incurrence of his cervical spine disability. Specifically, the Veteran has continuously stated that his cervical spine injury occurred when he was hit in the back of the head and neck with a pole during service. See May 2001 Report of Medical History. Further, the Veteran reported that he has continued to experience pain and functional limitations in his neck ever since service. See May 2021 Board Hearing Trans. pp. 8-9; August 2014 Private Medical Treatment Record. The Veteran's service treatment records (STRs) demonstrate complaints and treatment for his neck pain. See January 2000 STR. Additionally, at the Veteran's separation examination, the Veteran reported recurrent back problems. See May 2001 Report of Medical History. As a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing neck pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's reports of the onset of pain in service, and continuous symptoms of neck pain since his service to be credible in the instant case. Lastly, regarding a link between the Veteran's cervical spine disability and service, the Board finds that, as reported by the Veteran, he developed chronic neck pain during service, and it has continued to the present. See May 2001 Report of Medical History; August 2014 Private Treatment Record. Additionally, as stated above, the Veteran is competent to identify his continuous neck pain since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno, 6 Vet. App. at 465. In addition to the Veteran's statements, there is a negative opinion against the claim. The Board, however, affords the negative VA opinion little probative weight because the examiner did not address the Veteran's lay statement regarding pain since service or adequately explain his findings. The Board acknowledges that the July 2017 VA examiner opined that the Veteran's cervical spine disability was related to the Veteran's degenerative changes of aging and ongoing repetitive injuries due to the Veteran's post-service occupation as a mechanic. However, this examiner failed to adequately consider the Veteran's March 2013 MRI imaging that noted degenerative changes of the cervical spine that were noted prior to the Veteran turning 40. Additionally, the examiner failed to explain why the Veteran's post-military occupation as a mechanic, as opposed to his in-service occupation as mechanic, caused ongoing repetitive injuries resulting in the Veteran's cervical spine disability. See Veteran's DD 214 Certified Original - Certificate of Release or Discharge from Active Duty. Further, the examiner did not address lay statements regarding the in-service injury and the continuity of his neck pain. Therefore, the Board finds that this opinion is inadequate because the examiner did not adequately explain his findings and did not consider the Veteran's lay statements regarding his neck pain since service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Based on the Veteran's credible lay statements attesting to the development of a chronic condition in service, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a). 3. Entitlement to service connection for the Veteran's lumbar spine condition is granted. After reviewing the evidence of record, the Board finds that service connection for the lumbar spine disability is warranted in the instant case. Turning to the evidence of record, the Board finds that the Veteran's lumbar spine disability was confirmed by the July 2017 VA examiner. See July 2017 VA Medical Opinion. Next, the Board finds that the evidence of record demonstrates an in-service incurrence of his lumbar spine disability. Specifically, the Veteran has continuously stated that his lumbar spine injury occurred when he twisted his back and when he was pinned in between two pieces of equipment. See May 2021 Board Hearing Trans. p. 9. Further, the Veteran reported that he has continued to experience pain and functional limitations in his neck ever since service. See May 2021 Board Hearing Trans. pp. 8-9; August 2014 Private Medical Treatment Record. The Veteran's STRs demonstrate complaints and treatment for his back pain. See June 1999 and February 2000 STRs. Additionally, at the Veteran's separation examination, the Veteran reported recurrent back problems. See May 2001 Report of Medical History. As a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including discussing his continuous symptoms of experiencing low back pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's reports of the onset of pain in service, and continuous symptoms of back pain since his service to be credible in the instant case. Lastly, regarding a link between the Veteran's lumbar spine disability and service, the Board finds that, as reported by the Veteran, he developed chronic back pain during service, and it has continued to the present. See May 2001 Report of Medical History; August 2014 Private Treatment Record. Additionally, as stated above, the Veteran is competent to identify his continuous back pain since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno, 6 Vet. App. at 465. In addition to the Veteran's statements, there is a negative opinion against the claim. The Board, however, affords the negative VA opinion little probative weight because the examiner did not address the Veteran's lay statement regarding pain since service or adequately explain his findings. The Board acknowledges that the July 2017 VA examiner opined that the Veteran's lumbar spine disability was related to the Veteran's degenerative changes of aging and ongoing repetitive injuries due to the Veteran's post-service occupation as a mechanic. However, this examiner failed to explain why the Veteran's post-military occupation as a mechanic, as opposed to his in-service occupation as mechanic, caused ongoing repetitive injuries resulting in the Veteran's lumbar spine disability. Additionally, the examiner did not address the Veteran's in-service diagnosis of mechanical low back pain and whether it led to his lumbar spine condition. See June 1999 STR. The Veteran also stated that he treated his back pain with BC powder and attended the chiropractor regularly after service, which the examiner did not address. See May 2021 Board Hearing Trans. pp. 8-9. Accordingly, the Board finds that this opinion is inadequate because the examiner failed adequately explain his findings, did not consider the Veteran's lay statements regarding his back pain since service, and did not address the in-service lumbar spine diagnosis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Based on the Veteran's credible lay statements attesting to the development of a chronic condition in service, the Board finds that service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.