Citation Nr: 21041893 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-28 976 DATE: July 10, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for right shoulder and arm numbness is reopened. Service connection for a right upper extremity neurological disability is granted. As new and material evidence has been received, the claim of entitlement to service connection for back injury residuals is reopened. Service connection for a recurrent headache disability is granted. REMANDED Entitlement to service connection for a recurrent lumbosacral spine disability, to include injury residuals and degenerative disc disease, is remanded. FINDINGS OF FACT 1. A May 2007 rating decision denied service connection for right shoulder and arm numbness. The Veteran did not submit a timely notice of disagreement and the May 2007 rating decision is final. 2. The additional evidence received since the May 2007 rating decision is new and material. 3. Service connection has been established for cervical spine spondylosis and fusion residuals; left upper extremity radiculopathy; and post operative cervical scar residuals. 4. A recurrent right upper extremity neurological disability is related to the service connected cervical spine spondylosis and fusion residuals. 5. A May 2007 rating decision denied service connection for back injury residuals. The Veteran did not submit a timely notice of disagreement and the May 2007 rating decision is final. 6. The additional evidence received since the May 2007 rating decision is new and material. 7. A recurrent headache disability was initially manifested during active service. CONCLUSIONS OF LAW 1. The May 2007 rating decision that denied service connection for right shoulder and arm numbness is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for right shoulder and arm numbness has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a recurrent right upper extremity neurological disability due to cervical spine spondylosis and fusion residuals have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). 4. The May 2007 rating decision that denied service connection for back injury residuals is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 5. New and material evidence to reopen the claim for service connection for back injury residuals has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. The criteria for service connection for a recurrent headache disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1993 to July 1997. Application to Reopen Claims for Service Connection Generally, absent the filing of a notice of disagreement within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In regards to pending legacy claims not under the modernized review system, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans' Appeals (Board) without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Right Shoulder and Arm A May 2007 rating decision denied service connection for right shoulder and arm numbness "because there is no evidence of this condition while in service." The Veteran was informed in writing of the adverse decision and his appellate rights. The Veteran did not submit a notice of disagreement with the adverse decision. The evidence considered by VA in reaching the May 2007 rating decision included service medical and personnel records, Department of Veterans Affairs (VA) examination and treatment records, private clinical documentation, and written statements from the Veteran. The service treatment records do not refer to right shoulder and arm numbness. The report of a March 2007 VA examination states that the Veteran complained of radiating pain in the right upper extremity. The examiner concluded that "there is no evidence for a shoulder condition at this time." New and material evidence pertaining to the issue of entitlement to service connection for right shoulder and arm numbness was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the May 2007 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the May 2007 rating decision includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran and service comrades. A July 2019 VA evaluation states that the Veteran's right upper extremity neurological symptoms "of bilateral pain as well as his decreased reflexes and decreased sensation of his arms are all part of and subsumed by his previous anterior cervical disc fusion surgery and very consistent and congruent as residual neurogenic cervical mild narrowing." The Board finds that the July 2019 VA evaluation to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for right shoulder and arm numbness when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that the Veteran has a recurrent right upper extremity neurological disability. As new and material evidence has been received, the claim of entitlement to service connection for right shoulder and arm numbness is reopened. The Board will now turn to the merits of the claim for service connection for a right upper extremity neurological disability. Service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for cervical spine spondylosis and fusion residuals; left upper extremity radiculopathy; and post operative cervical scar residuals. The July 2019 VA evaluation states that the Veteran's right upper extremity neurological symptoms "of bilateral pain as well as his decreased reflexes and decreased sensation of his arms are all part of and subsumed by his previous anterior cervical disc fusion surgery and very consistent and congruent as residual neurogenic cervical mild narrowing." Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a recurrent right upper extremity neurological disability secondary to the service connected cervical spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Back Injury Residuals A May 2007 rating decision denied service connection for back injury residuals "because although there is evidence of treatment in service for your back, no permanent residual or chronic disability is shown by your service medical records or by the evidence following discharge." The Veteran was informed in writing of the adverse decision and his appellate rights. The Veteran did not submit a notice of disagreement with the adverse decision. The evidence considered by VA in reaching the May 2007 rating decision included service medical and personnel records, VA examination and treatment records, private clinical documentation, and written statements from the Veteran. The service treatment records state that the Veteran was seen for back pain. A September 1994 treatment record notes that the Veteran complained of back pain. An assessment of paraspinal muscle strain was advanced. The service documentation indicates that the Veteran was also injured in a December 1996 motor vehicle accident. The report of a March 2007 VA examination states that the Veteran complained of low back pain and stiffness. The examiner concluded that "there is no evidence for any low back condition at this time." New and material evidence pertaining to the issue of entitlement to service connection for back injury residuals was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the May 2007 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the May 2007 rating decision includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran and service comrades. An April 2014 VA treatment record states that the Veteran was diagnosed with "motor vehicle accident 1995, status post decompression of L5 S1 herniated nucleus pulposus in October 2012." The Board finds that the April 2014 VA treatment record to be of such significance that it raises a reasonable possibility of substantiating the claim for service connection for back injury residuals when considered with the evidence previously of record. The documentation addresses the reason of the previous denial as it shows that the Veteran has a recurrent lumbosacral spine disability related to the documented inservice motor vehicle accident. As new and material evidence has been received, the claim of entitlement to service connection for back injury residuals is reopened. The issue of entitlement to service connection for a recurrent lumbosacral spine disability will be addressed below in the Remand portion of this decision below. Service Connection for a Recurrent Headache Disability Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. The service treatment records reflect that the Veteran was seen for recurrent headaches. The report of the June 1997 physical examination for service separation states that the Veteran complained of frequent headaches. The Veteran was diagnosed with occasional headaches. A December 2018 VA neurological evaluation states that the Veteran complained of constant headaches since 1995. The Veteran was diagnosed with headaches. The Veteran was diagnosed with recurrent headaches during active service and following service separation until the present time. Therefore, service connection for a recurrent headache disability is warranted. REASONS FOR REMAND Entitlement to service connection for a recurrent lumbosacral spine disability, to include injury residuals and degenerative disc disease, is remanded. The claim for service connection for a recurrent lumbosacral spine disability, to include injury residuals and degenerative disc disease, has been reopened. However, the Board finds that further development is needed before the claim can be adjudicated. The Veteran asserts that service connection for a recurrent lumbosacral spine disability as the claimed disability originated during active service as the result of trauma including that associated with a motor vehicle accident An April 2014 VA treatment record states that the Veteran was diagnosed with "motor vehicle accident 1995, status post decompression of L5 S1 herniated nucleus pulposus in October 2012." VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board finds that the Veteran should be afforded further VA spine evaluation to determine the relationship between the diagnosed lumbosacral spine degenerative disc disease and the documented inservice trauma. Clinical documentation dated after October 2018 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). These matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any recurrent lumbosacral spine disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided since October 2018 not already of record. 3. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the nature and etiology of any identified lumbosacral spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent lumbosacral spine disabilities found. (b) Opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability, had its onset during active service or is related to any incident of service, including the documented inservice back pain and motor vehicle accident. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.