Citation Nr: 21041061 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-28 782 DATE: July 8, 2021 ORDER New and material evidence having been received by VA sufficient to reopen a previously-denied claim to establish service connection for a cervical spine disability, the claim is reopened. Entitlement to service connection for a cervical spine disability, diagnosed as a cervical spine strain, cervical spondylosis without myelopathy, a degenerative cervical spine disability, and cervical spondylosis with myelopathy and a left C5-C6 laminoforaminotomy, is granted. FINDINGS OF FACT 1. A December 2013 rating decision denied the Veteran's claim to establish service connection for a cervical spine disability; the Veteran did not appeal that decision, nor was any new and material evidence submitted during the appeal period. 2. Evidence of record since the final December 2013 rating decision raises a reasonable possibility of substantiating the issue to establish service connection for a cervical spine disability. 3. Resolving all doubt in the Veteran's favor, the competent and probative evidence of record supports a finding that the Veteran's cervical spine disability, diagnosed as a cervical spine strain, cervical spondylosis without myelopathy, a degenerative cervical spine disability, and cervical spondylosis with myelopathy and a left C5-C6 laminoforaminotomy, started in service, and has continued since service. CONCLUSIONS OF LAW 1. The December 2013 rating decision is final with respect to the Veteran's claim to establish service connection for a cervical spine disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. Since the December 2013 rating decision, new and material evidence has been received by VA sufficient to reopen the issues of entitlement to service connection for a cervical spine disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 3. The criteria for entitlement to service connection for a cervical spine disability, diagnosed as a cervical spine strain, cervical spondylosis without myelopathy, a degenerative cervical spine disability, and cervical spondylosis with myelopathy and a left C5-C6 laminoforaminotomy, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 2000 to October 2005. The Veteran also had service in the Ohio Army National Guard, including a verified period of Active Duty for Training (ACDUTRA) from July 11, 2011, to July 15, 2011. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In July 2020, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the hearing is associated with the electronic claims file. Service Connection and New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108]." 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Additionally, other organic diseases of the nervous system, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the context of Reserve or National Guard service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing Inactive Duty Training (INACDUTRA). 38 U.S.C. §§ 101 (24); 38 C.F.R. § 3.6 (2019). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (22), (24); 38 C.F.R. § 3.6(a), (c); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The term INACDUTRA is defined, in part, as duty, other than full- time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2012). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). 1. Whether new and material evidence has been received by VA sufficient to reopen a previously denied claim to establish service connection for a cervical spine disability Petition to Reopen As will be fully addressed below, the Board concludes that since the AOJ's prior final denial in December 2013, VA has received evidence which is new and material and raises a reasonable possibility of substantiating the claim. As such, this issue is reopened. Pertinently, in the December 2013 rating decision, the AOJ denied the claim on the basis that the Veteran's injury did not occur during a period of active service. The Veteran did not submit a timely expression of disagreement with the AOJ's denial of the claim, nor did he submit pertinent new and material evidence within the appeal period of this rating decision. As such, the December 2013 rating decision is final regarding the AOJ's denial of this claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a), (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In order for the claim that was previously denied to be reopened, evidence must have been added to the record since the prior final denial of the claim that addresses these bases. The AOJ's determinations during the pendency of the present appeal concerning whether or not new and material evidence has been received by VA since the prior final denial is not binding on the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). At the time of the final denial, VA had evidence that the Veteran had a period of ACDUTRA from July 11, 2011, to July 15, 2011. The Veteran has maintained that his injury was incurred during INACDUTRA, immediately following his period of ACDUTRA in July 2011. Evidence received by VA since the prior final denial includes evidence that reinforces the Veteran's assertion of being injured during a period of INACDUTRA. The above evidence is "new," as the evidence was not before the VA at the time of the December 2013 rating decision, and "material" as it raises the reasonable possibility of substantiating the previously denied issue. The Board thus finds that new and material evidence has been submitted to reopen the issue to establish service connection for a cervical spine disability, since the prior final denial in December 2013. On that basis, the issue is reopened. 2. Entitlement to service connection for a cervical spine disability, diagnosed as a cervical spine strain, cervical spondylosis without myelopathy, a degenerative cervical spine disability, and cervical spondylosis with myelopathy and a left C5-C6 laminoforaminotomy As an initial matter, the Board notes that the Veteran sought treatment on July 17, 2011, as noted by a private medical record, which documented the Veteran had injured his neck and was diagnosed with a cervical spine strain on that date. The Veteran's subsequent medial history includes documentation of the following disabilities related to his initial injury, cervical spondylosis without myelopathy, a degenerative cervical spine disability, and cervical spondylosis with myelopathy and a left C5-C6 laminoforaminotomy. Accordingly, the first element for establishing service connection has been met. With regard to the second element, the Board notes that the Veteran's service treatment records and military personnel records are silent for an injury, during the Veteran's period of INACDUTRA. However, the Veteran has consistently maintained that on June 17, 2011, after a period of ACDUTRA ended on July 15, 2011, he was participating in an event for the Ohio Army National Guard, when he sustained an injury at a picnic. While there is no military record of this injury, the Veteran has maintained that he went directly to the hospital for treatment for this injury to his cervical spine. The record includes documentation of the Veteran's hospital visit on June 17, 2011, during which the Veteran was diagnosed with a cervical spine strain. Further, the Veteran has provided statements, dated December 2015, from two members of the Ohio Army National Guard, who were witnesses of the Veteran's injury. Both witnesses stated that the Veteran was injured during the company drill weekend picnic during an event with a bungee cord. The witnesses reported that the Veteran was dismissed from the weekend to seek treatment after the injury. Accordingly, element two, an in-service injury while in INACDUTRA status, occurred. Regarding the final element of nexus, the Board notes that the Veteran has not been provided a VA examination to determine the medical nexus of his current cervical spine disability. However, the lack of a medical nexus does not defeat the Veterans claim, as the Veteran has experienced continuity of symptomatology. However, a lack of a medical nexus is not fatal to the Veteran's claim because, as noted above, service connection may be established for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service, to include evidence showing continuity of symptoms during and after service. 38 C.F.R. § 3.303(d). As discussed above, the Veteran's injury occurred during a period of INACDUTRA. The Veteran has consistently and credibly maintained that his cervical spine symptoms began with his July 2011 injury, and have continued to progress since that time. The Veteran has continuously sought treatment for his cervical spine injury since the day of his accident. In July 2011, the Veteran was initially diagnosed with a cervical spine strain. Private provider records from January 2012 note the Veteran's five-month history of neck pain following the July 2011 injury, and indicated the Veteran's cervical spine disability was diagnosed in January 2012 as cervical spondylosis without myelopathy. Following the January 2012 medical note, a February 2012 MRI of the cervical spine indicated the Veteran had cervical spondylosis at C5-C6, with foraminal stenosis left side C5-C6. In February 2012, the Veteran underwent a procedure for left C6 diagnostic selective nerve root block and left C5 and left C6 diagnostic medical branch blockade, to assist with the pain experienced from the Veteran's cervical spine disability. An April 2012 medical record noted the Veteran's cervical spine disability as a degenerative issue. The Veteran underwent a second procedure in July 2012. At that time, medical records indicate that the Veteran's cervical spine disability was diagnosed as cervical spondylosis with myelopathy, and he had a left C5-C6 laminoforaminotomy. As there is no evidence to the contrary in the record, the Board finds that the Veteran's current cervical spine disability began with his INACDUTRA injury and has continued to the present. Accordingly, under these circumstances, and giving the Veteran the benefit of the doubt, the Board finds that service connection for cervical spine disability, diagnosed as a cervical spine strain, cervical spondylosis without myelopathy, a degenerative cervical spine disability, and cervical spondylosis with myelopathy and a left C5-C6 laminoforaminotomy is warranted on a direct basis. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.