Citation Nr: 21041363 Decision Date: 07/09/21 Archive Date: 07/08/21 DOCKET NO. 18-05 972 DATE: July 9, 2021 ORDER New and material evidence has been received, and the previously denied claim for service connection for cervical spine degenerative disc disease C5-6 (claimed as neck condition) is reopened. New and material evidence has been received, and the previously denied claim for service connection for right arm numbness and tingling is reopened. New and material evidence has been received, and the previously denied claim for right shoulder condition is reopened. REMANDED Service connection for cervical spine degenerative disc disease C5-6 (claimed as neck condition) is remanded. Service connection for right arm numbness and tingling is remanded. Service connection for right shoulder condition is remanded. Service connection for fibromyalgia is remanded. Service connection for left foot condition, other than left foot metatarsalgia and neuroma, is remanded. Service connection for right foot condition, other than residuals of right foot second toe fracture, to include hammertoe deformity, is remanded. FINDINGS OF FACT 1. The Veteran was denied service connection for cervical spine degenerative disc disease C5-6, right arm numbness and tingling, and right shoulder condition in a November 2013 rating decision. She did not appeal that decision or submit new and material evidence within one year of its issuance and it became final. 2. Evidence submitted since the November 2013 rating decision is new and triggers a duty to assist when considered with evidence of record. CONCLUSIONS OF LAW 1. The criteria to reopen a previously denied claim of service connection for cervical spine degenerative disc disease C5-6 have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen a previously denied claim of service connection for right arm numbness and tingling have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to reopen a previously denied claim of service connection for right shoulder condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from October 1988 to March 1989; she served on active duty from October 2001 to April 2002 and from March 2008 to March 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2015 and May 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge in February 2021; a transcript is of record. 1. New and material evidence has been received, and the previously denied claim for service connection for cervical spine degenerative disc disease C5-6 (claimed as neck condition), right arm numbness and tingling, and a right shoulder condition is reopened. A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for cervical spine degenerative disc disease C5-6, right shoulder condition, and right arm numbness and tingling was denied in a November 2013 rating decision. The RO determined that the cervical spine and right shoulder conditions were not caused by service and that there was no diagnosis of right arm numbness and tingling. The Veteran sought to reopen her claims in February 2014. Although the Veteran filed a new claim within one year from the November 2013 rating decision, no new and material evidence was received within that one-year period. Therefore, the November 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. Evidence submitted since the November 2013 rating decision includes updated VA treatment records and private treatment records pertaining to her cervical spine, right shoulder, and right arm conditions, and the February 2021 Board hearing transcript. Given that the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the November 2013 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claims for service connection. Thus, the service connection claims for cervical spine degenerative disc disease C5-6, right arm numbness and tingling, and right shoulder condition are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Service connection for cervical spine degenerative disc disease C5-6 (claimed as neck condition) is remanded. 2. Service connection for right arm numbness and tingling is remanded. 3. Service connection for right shoulder condition is remanded. The Veteran contends that her cervical spine, right arm and right shoulder conditions were aggravated by her active duty service. See February 2015 VA Form 21-4138. The Veteran's August 1989 private medical record shows she had a bike accident on June 20, 1989, and that she was treated for neck pain, headache pain, and pain into the right arm. The record noted an assessment of cervical strain with radicular symptoms from a car accident on June 20, 1989. Another August 1989 private medical record notes that the Veteran was riding her bicycle on June 20, 1989 when she was hit by a car. She stated she was thrown onto the hood of the car and rolled off. She complained of constant pain in the posterior shoulder radiating into the right arm pit, forearm, and hand. She reported some numbness and tingling in the same distribution as the pain. On examination, her neck was quite stiff and had trouble rotating the neck. The impression was post-traumatic cervical strain, muscle spasm. In a January 1991 private treatment record, the Veteran reported that she had since been under physical and occupational therapy, and pain management program since the June 1989 bike accident. She reported complaints of pain in the right shoulder, upper trapezius, and neck. Physical examination showed that her right shoulder was lower than left, and the range of motion was limited in abduction with pain. The impression was myofascial pain syndrome. The Veteran's Form DD 214s show she had active duty service from October 2001 to April 2002 and from March 2008 to March 2009. There is no record of an induction examination for the first period of active duty. As it pertains to the Veteran's second period of active duty, there is a March 2008 pre-deployment assessment that generally noted no health issues. An August 2008 service treatment record shows that she was seen for the right shoulder. Physical examination revealed abnormalities in bilateral shoulders. There was acute pain with palpation to the posterior deltoid and coracoid process, and there was limited active range of motion with abduction at 90-180 degrees. In a February 2009 post-deployment record, the Veteran stated that her health became worse during her deployment that occurred from March 2008 to February 2009. She reported she currently had or had developed muscle aches as well as numbness or tingling in hands or feet and weakness. The Veteran was afforded a VA examination in February 2013. She reported that she was riding a bicycle in 1989 when a car hit her. She stated she was treated for cervical spine, right shoulder, and right middle finger. She reported that she has had progressive loss of range of motion and increase in pain. The examiner noted that the Veteran's diagnosis of degenerative disc disease C5-6 was consistent with the pre-service 1989 motor vehicle accident injury. However, the examiner did not opine on whether the cervical spine disability was aggravated during her active duty service. The examiner also noted that there was no diagnosis of a right arm condition and thus, a nexus opinion was not provided. Subsequent VA treatment records show a diagnosis of cervical radiculopathy. A September 2013 VA Peripheral Nerves Disability Benefits Questionnaire (DBQ) shows a diagnosis of regional pain syndrome and fibromyalgia syndrome manifested by symptoms of pain, numbness, and paresthesias and/or dysesthesias in the right upper extremity of mild severity. Regarding the right shoulder, the examiner diagnosed right shoulder supraspinatus tendinopathy, but no nexus opinion was provided. In sum, there is clear and unmistakable evidence that diagnoses of post-traumatic cervical strain, muscle spasm, cervical strain with radicular symptoms, and myofascial pain syndrome (manifested as pain in the right shoulder, upper trapezius, and neck) existed prior to the periods of active duty from October 2001 to April 2002 and from March 2008 to March 2009. An addendum medical opinion is required to determine whether these conditions were aggravated during either active duty period. 4. Service connection for fibromyalgia is remanded. The Veteran contends that she has fibromyalgia that is secondary to her service-connected lumbosacral spine degenerative disc disease. See February 2015 VA Form 21-4138; see January 2018 VA Form 9. The Veteran underwent a VA examination for fibromyalgia in May 2015. The examiner noted a diagnosis of fibromyalgia as early as 1989. The Veteran reported that her fibromyalgia symptoms did not exist when she joined the Army, but that they came back when she fell on ice and injured her back during active service in January 2009. The examiner opined that the current symptoms and diagnosis of fibromyalgia are less likely as not related to or aggravated by her service, her falling on ice during service, or any other service-connected condition. The examiner explained that the Veteran was diagnosed with fibromyalgia in 1989 and that there was no evidence to indicate that the fall or the lumbosacral disability leads to flare of fibromyalgia. The examiner noted that the flare was more likely than not related to nonservice-connected factors. The May 2015 examiner did not further which non-service-connected factors were related to her fibromyalgia, nor provide an opinion on whether the service-connected lumbar disability aggravated her fibromyalgia. The U.S. Court of Appeals for Veterans Claims has indicated that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The May 2015 opinion is inadequate for adjudication purposes, and a remand is required for an addendum opinion. The Board is aware that a medical opinion was received from the Veteran's private doctor in February 2021. Dr. P. opined the Veteran's back injury in 2009 was likely the trigger for her fibromyalgia and her fibromyalgia symptoms were related to and exacerbated by her 27-years of military service. However, this opinion contains no rationale for the conclusions reached and does not provide a sufficient basis upon which to grant service connection. 5. Service connection for left foot condition, other than left foot metatarsalgia and neuroma, is remanded. 6. Service connection for right foot condition, other than residuals of right foot second toe fracture, to include hammertoe deformity, is remanded. The Veteran contends that her bilateral foot condition is related to an injury she incurred during a training in 1991. She asserts that her foot condition became worse during her service from 2008 to 2009. See February 2016 notice of disagreement (NOD); see also October 2017 VA examination for foot conditions. The Veteran stated at the Board hearing that the specific foot condition she is seeking service connection for was the bunions of her feet. See February 2021 Hr'g Tr. at 10. A Reserves record dated in June 1991 shows a complaint of a bruise on the bottom of left foot. The clinician noted there was no discoloration or swelling, but that pain occasionally radiated from the ball of the foot to 2nd and 3rd toes. Reserves records also include a May 1998 report of medical history noting bunion in the right foot and pain in the left foot toe area. In a July 2002 report of medical history, the examining clinician noted bilateral bunion surgery in 1993. At the October 2017 VA examination for foot conditions, the Veteran reported that she had a bruise on the bottom of her left foot during a training at Fort McCoy in 1991. She also reported that when she wore boots in 2008-2009, the more she walked, the worse the foot conditions got. The examiner opined that the Veteran's hallux valgus is less likely than not related to the bruise reported in June 1991 because hallux valgus occurs at the first metatarsophalangeal (MTP) joint. The examiner also opined that hallux valgus is less likely related to her service-connected right second toe fracture for the same reason. An addendum opinion is needed because the October 2017 VA medical opinion did not specifically discuss whether her preexisting bunions were aggravated during the active duty period from March 2008 to March 2009; and the Veteran asserted her foot condition became worse from walking in her boots during that time. The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the preexisting cervical spine condition, or right arm numbness and tingling, and right shoulder conditions. The examiner should review the claims file, and the Remand which contains relevant information, and address the following: a) Did the Veteran's cervical spine condition, or right arm numbness and tingling, and right shoulder conditions ((diagnosed in 1989 and 1991 as post-traumatic cervical strain, muscle spasm, cervical strain with radicular symptoms, and myofascial pain syndrome (manifested as pain in the right shoulder, upper trapezius, and neck)), which existed prior to service, at least as likely as not increase in severity during either subsequent period of active duty (i.e. from October 2001 to April 2008 or from March 2008 to March 2009)? b) If so, was the increase in severity of those conditions clearly and unmistakably (undebatable) due to the natural progress of those diseases? A rationale must be provided. 2. Obtain an opinion from an appropriate clinician to determine the etiology of the current fibromyalgia. a) Is it at least as likely as not that the Veteran's fibromyalgia was incurred during, or as a result of, the Veteran's periods of active duty from October 2001 to April 2008 or from March 2008 to March 2009? b) Is it at least as likely as not that the Veteran's fibromyalgia is either caused by OR aggravated by her service-connected lumbosacral spine degenerative disc disease? 3. Obtain an opinion from an appropriate clinician regarding the preexisting bilateral bunion (hallux valgus) conditions. The examiner should review the claims file. a) The examiner is to provide an opinion as to whether the Veteran's bilateral bunions, which existed prior to active duty, at least as likely as not increased in severity during either subsequent period of active duty (i.e. from October 2001 to April 2008 or from March 2008 to March 2009)? b) If so, was the increase in severity of her bilateral bunions clearly and unmistakably (undebatable) due to the natural progress of the disease? A rationale must be provided. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.