Citation Nr: 22011958 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-54 230 DATE: March 2, 2022 ORDER New and material evidence has been received to reopen a service connection claim for a neck condition. New and material evidence has been received to reopen a service connection claim for mid and upper spine condition. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a thoracic spine disability is remanded. FINDINGS OF FACT 1. Service connection for a neck condition and a mid and upper spine condition was last denied in an unappealed July 2007 rating decision. 2. The evidence received since the July 2007 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claims of service connection for a neck condition and a mid and upper spine condition. CONCLUSIONS OF LAW 1. The July 2007 rating decision that last denied service connection for a neck condition and a mid and upper spine condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2021). 2. New and material evidence has been received sufficient to reopen the claims of service connection for a neck condition and a mid and upper spine condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1993 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In September 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. During the hearing, the Veteran's representative indicated her intent to submit additional evidence following the hearing and waived initial AOJ consideration of the evidence as reflected in the written hearing transcript. Thereafter, additional evidence was associated with the electronic claims file in October 2021. As phrased in the title section, above, the Board has recharacterized the service connection issues to cervical and thoracic spine disabilities, respectively, to better reflect the information contained in the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Petition to Reopen Previously Denied Service Connection Claims Rating decisions are final, and binding, based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an AOJ decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. In a legacy claim (a claim not appealed under the new Appeals Modernization Act) such as this one, an exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a July 2007 rating decision, the AOJ denied the Veteran's original claims of service connection for a neck condition and a mid and upper spine condition, concluding that neither condition was related to service, and that the neck condition was not related to the Veteran's service-connected right knee disorder. See Rating Decision dated July 10, 2007. The Veteran did not appeal the July 2007 rating decision, nor was new and material evidence received within a year of issuance of the July 2007 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In May 2015, the Veteran sought to reopen his service connection claims for neck and mid and upper spine conditions. In an August 2015 rating decision, the AOJ reopened the claims, but denied them, concluding that the evidence does not show that either disorder is related to service. See Rating Decision dated August 8, 2015. In a September 2015 rating decision, the AOJ concluded that additional evidence does not show that either disorder is related to service and again denied the claims. See Rating Decision dated September 25, 2015. The Veteran timely submitted a NOD and perfected an appeal to the Board, and the instant appeal ensued. Based on the procedural history of the case, the last final decision pertinent to the Veteran's claims of service connection for a neck condition and a mid and upper spine condition was the July 2007 rating decision. Evidence of record at that time included the Veteran's October 2006 service connection claim, his statements in support of his claims, service treatment records, VA and private treatment records, including a 2006 Radiograph Report from private chiropractic doctor G.A., and VA examinations and opinions dated March 2007 and June 2007. Evidence received since the prior denial of the claim in July 2007 includes the Veteran's May 2015 service connection claim, private and VA treatment records, statements of the Veteran and others in support of his claim, September 2015 VA neck and back examination reports, and the transcript of the September 2021 Board hearing. The additional evidence received since the July 2007 prior final denial, particularly the Veteran's competent testimony during the 2021 Board hearing with regard to having had continuing neck and mid back pain since service speaks to the question of nexus between the Veteran's currently diagnosed neck and back disorders and service, when coupled with the evidence of degenerative changes in the cervical and mid thoracic spine and the earlier records from Anderson Chiropractic Clinic noting changes consistent with an injury in approximately 1996. Moreover, the Veteran highlighted multiple neck/mid back complaints in service, and that evidence was not considered in the prior final rating; rather only one instance of neck pain in service was considered. Lastly, the Veteran's brother submitted a statement in September 2021 in which he recalled the Veteran "struggling" with neck and back pain since the accident in service. Accordingly, new and material evidence has been received, and to this extent only, the claims of service connection for neck and mid and upper spine conditions are reopened. REASONS FOR REMAND During the September 2015 VA cervical thoracolumbar spine examination, the VA examiner concluded that the Veteran does not have a disability of the thoracic spine. However, the examination report reveals that the examiner's determination was, in part, based on 2006 spine x-rays. Five disease processes were revealed in July 2016 non-VA spine x-rays associated with the Veteran's claims file in October 2016. See Radiographic Findings and Treatment Notes dated July 2016; Correspondence from chiropractic radiologist J.P., D.C. dated September 7, 2016. These x-rays revealed degenerative disc disease of the thoracolumbar spine, Schmorl's node of the lower thoracic vertebral bodies, anterior wedge deformity of the thoracolumbar spine, right convexity of the thoracolumbar spine, and mild generalized osteopenia. Id. Given that a central issue in determining the probative value of an examiner's findings is whether the examiner was informed of the relevant facts, the September 2015 VA examiner's reliance on x-rays that were at least a decade old rather than obtaining new spine imagery, readily available in conjunction with VA examinations, is a gross shortcoming that renders the examination of no probative worth. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In view of the foregoing, the Board finds the September 2015 VA thoracolumbar spine examination inadequate. See Barr, supra. Regarding the September 2015 VA cervical spine examination, the examiner noted a diagnosis of degenerative arthritis of the cervical spine and opined that it is less likely than not related to an in-service vehicle or bicycle accident, emphasizing that the Veteran's service exit examination was not available for review. Thus, the examiner essentially concluded that a nexus was not shown because there is no evidence of a neck injury in the service treatment records. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (The absence of evidence in the Veteran's service treatment records, alone, may not serve as the basis for a negative opinion as to direct service connection). To the contrary, the Veteran's treatment records include a December 1996 exit examination bearing the abbreviation "MEB" a medical board discharge examination. Additionally, the service treatment records include December 1996 treatment notes from Bliss Army Community Hospital reflecting neck and bilateral head pain that was diagnosed as cervical strain. The VA examiner apparently overlooked this relevant evidence, which is suggestive that the examiner's review of the claims file was cursory at best, which renders the opinion of little or no probative value. See Nieves-Rodriguez, 22 Vet. App. at 304. Given the foregoing, the Board finds the September 2015 medical opinion inadequate. See Barr, supra. Lastly, during the September 2021 Board hearing, the Veteran renewed his alternative theory that his cervical spine disorders were caused by his service-connected right knee chondromalacia. The record includes an unfavorable June 2007 VA opinion addressing secondary service connection regarding the right knee. However, the 2013 holding of the United States Court of Appeals for Veterans Claims that an opinion regarding secondary service connection must address causation and aggravation has rendered the June 2007 opinion inadequate as it addressed only causation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, remand is necessary to obtain adequate VA opinions addressing the etiology of the Veteran's spine disorders. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see Barr, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran and his representative, and, with their assistance, identify any outstanding records of pertinent medical treatment from VA and non-VA health care providers. Provide the requisite VA consent and authorization forms for this purpose. Allow a reasonable time for reply. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. To the extent possible, make efforts to ensure that readable versions of all records with a VBMS receipt date of 10/05/2021 are available and viewable in the electronic claims file. 4. Then, schedule the Veteran for a VA examination as to the etiology of his currently diagnosed cervical spine and lumbar spine disorders. Access to the Veteran's electronic claims file, which shall include a copy of this Remand, must be made available to the examiner for review, and be reviewed, in connection with the examination. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. *The examiner's review of the body of this Remand is recommended to assist in avoiding errors that rendered the September 2015 VA examinations and opinion inadequate. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Obtain x-rays and/or other appropriate diagnostic imagery studies of the Veteran's cervical and thoracolumbar in conjunction with VA examination. (b) Thereafter, identify all currently diagnosed cervical spine and thoracolumbar spine disorders that have been present at any point since the commencement of the claim period in May 2015. (c) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed cervical spine and thoracolumbar spine disorders(s) onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, to include the neck pain complaints in service, see March 1995, June 1995, and April 1996, STRs. (d) If the answer to (c) above is negative in regard to cervical spine disorders(s), provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the currently diagnosed cervical spine disorder(s) was CAUSED or AGGRAVATED by the service-connected right knee chondromalacia. Although the entire claims file, including LAY STATEMENTS, should be reviewed, the examiner's attention is directed to the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: *2016 cervical and thoracic spine x-ray findings and July-August 2016 treatment notes of J.P., D.C. (see VBMS entry with document type "Medical Treatment Record - Non-Government Facility," receipt date 10/13/2016); and *June 2006 Radiograph Report from G.A., D.C. describing cervical spine x-ray findings and noting they are consistent with previous injury (see VBMS entry with document type "Medical Treatment Record - Non-Government Facility," receipt date 05/15/2015, at page 1). *The Board's reference to evidence in this context should not be construed as a determination of its credibility. (Continued on the next page) The examiner must provide a complete rationale for all opinions proffered/provided. 5. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.