Citation Nr: 22012511
Decision Date: 03/04/22	Archive Date: 03/04/22

DOCKET NO. 19-15 840A
DATE: March 4, 2022

ORDER

New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a cervical spine disorder is granted.

Service connection for a cervical spine disorder is denied.

FINDINGS OF FACT

1. In a final decision issued in October 2013, the Agency of Original Jurisdiction (AOJ) denied service connection for a cervical spine disorder, characterized as residuals of status post cervical fusion. 

2. Evidence associated with the record since the final October 2013 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disorder. 

3. A cervical spine disorder is not shown to be causally or etiologically related to a disease or injury incurred during a period of active duty for training (ACDUTRA).

CONCLUSIONS OF LAW

1. The October 2013 rating decision that denied service connection for a cervical spine disorder, characterized as residuals of status post cervical fusion, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013).

2. New and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 

3. The criteria for service connection for a cervical spine disorder have not been met. 38 U.S.C. §§ 101(24), 1131, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served in the Army National Guard with a period of ACDUTRA from October 1981 to November 1981.This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2018 by a Department of Veterans Affairs (VA) Regional Office. In January 2021, the appellant testified at a Board hearing before the undersigned Veterans Law Judges. A transcript of the hearing is associated with the record. The Board observes that, subsequent to the issuance of the March 2019 statement of the case, the appellant submitted additional evidence in May 2019, October 2019, and February 2021 and, through his representative, waived AOJ consideration of such evidence. 38 U.S.C. § 7105(e)(1) (2018); 38 C.F.R. § 20.1305(c). 

1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a cervical spine disorder.

By way of background, VA received the appellant's original claim for service connection for a cervical spine disorder in February 2012. In an October 2013 rating decision, the AOJ considered his service treatment records (STRs), post-service private treatment records, and an October 2013 VA examination, and found that, while his STRs reflected that he received treatment after falling into a hole in October 1981 and he had a current diagnosis of residuals status post cervical spine fusion, the October 2013 VA examiner found that such disorder was unrelated to his military service. Thus, service connection for a cervical spine disorder was denied.

Later that month, the appellant was advised of the decision and his appellate rights, but he did not enter a notice of disagreement with such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the October 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013).

Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Since the October 2013 rating decision, additional evidence consisting of private treating records, an October 2018 VA examination and opinion, private opinions, and the appellant's lay statements, to include his testimony at the January 2021 Board hearing, has been received. While his treatment records continue to show a current cervical spine disorder and the October 2018 VA examiner found that such disorder was less likely than not related to his military service, the private opinions relate such disorder to his in-service fall and he testified to a continuity of neck pain since service. Thus, as such evidence is presumed credible for the purpose of reopening the appellant's claim, the Board finds that the evidence associated with the record since the final October 2013 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disorder. Thus, as new and material evidence has been received, such claim is reopened.

2. Entitlement to service connection for a cervical spine disorder.

A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other "than dishonorable." 38 C.F.R. § 3.1 (d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6 (c).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38C.F.R. §3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

The appellant contends that his current cervical spine disorder is a result of an injury incurred during his period of ACDUTRA. In this regard, his STRs reflect that he sustained an injury to his neck after falling in a manhole in October 1981. At such time, he complained of tenderness; however, an X-ray of the cervical spine was normal. Further, he was diagnosed with a bruised back and contusions of the left thigh and lower back, but no diagnosis pertinent to the neck was rendered. The Board further observes the proceedings of an Entrance Physical Standards Board (EPSBD) in November 1981 recommended the appellant be separated from the military based on inability to use his left thumb secondary to an old, healed fracture with malunion of the proximal phalanx. However, the EPSBD proceedings were negative for any findings or a diagnosis referable to a low back disorder, and reflects that the appellant concurred with the EPSBD's findings and requested to be discharged from the military.

After service, the file is devoid of any treatment records pertaining to the cervical spine until 1990 when the appellant began fairly regular treatment for chronic neck pain as a result of multiple motor vehicle accidents (MVAs). In this regard, the Board notes that, while he received chiropractic care from October 1983 to September 1988, purportedly for neck pain, his treatment provider, Dr. R.K., Sr., was unable to provide any information on the nature of such care. See March 2012 and November 2013 letters from Dr. R.K., Jr. Further, in March 1994, Social Security Administration (SSA) records reflect the appellant's report that his neck condition began in 1989 when he was injured in an MVA, which was subsequently aggravated by additional MVAs. Further, in August 1998, the appellant underwent evaluation of chronic cervical pain wherein he reported he had such pain for years, which was initiated during a MVA, and he had several MVAs since then, which exacerbated his pain. See Dr. J.D. records. At an October 1998 appointment, the appellant reported his symptoms began sometime in the early 1980s, but he did not report any specific injury and, in February 1999, he noted that his past injuries included multiple MVAs. See Dr. E.E. records.

The Board also observes that the appellant's first MVA occurred in 1979, prior to service, but he was involved in post-service MVAs in 1989, 1991, July 1996, July 1997, February 1999, May 2006, September 2007, and October 2015, which resulted in related complaints of neck pain. The record also reflects that he incurred at least one work-related injury in 1991 in his employment as a tile setter. Additionally, in an April 1998 South Carolina Vocational Rehabilitation Department (SCVRD) Functional Vocational Evaluation Report interview, the appellant stated that he had chronic neck pain secondary to "19 or 20" car accidents and reported a recent fall while climbing stairs at work. Further, SSA records reflect that the appellant reported his onset of disability, which included neck problems, as October 17, 1993. Additionally, on his disability report, he claimed that his neck first bothered him on December 12, 1989, and, as noted previously, in a March 1994 statement, he claimed that his neck condition "began in 1989 when I was injured in an MVA." Additionally, he stated "I've also been involved in other MVAs where I aggravated prior injuries." Similarly, in August 1996, he stated that he had been in several car accidents over the years, as well as a few work-related accidents, where he hurt his neck.

Rather, the first record in which the appellant claims that his cervical spine disorder is a result of his military service is in a February 2008 private treatment record. See Dr. A.T. records. At such time, he reported that he was discharged from the military due to his October 1981 neck (and back) injury. See Dr. A.T. records. However, as noted supra, the appellant was actually discharged due to an old left thumb fracture. Additionally, at his January 2021 Board hearing, he testified that he had experienced neck problems since he fell in a hole during ACDUTRA and had received continuous treatment for such condition. He further reported being involved in a single MVA in 1984 or 1985.

Nonetheless, upon review of the foregoing, the Board finds the appellant's reports as to the onset of his cervical spine disorder in service and a continuity of symptomatology thereafter to be not credible. In this regard, his STRs reflect that, while he reported neck pain due to his fall, contemporaneous X-rays were normal and the ultimate diagnosis was bruised back and contusions of the left thigh and lower back, without a diagnosis of a neck disorder. Moreover, EPSBD proceedings the following month were devoid of any mention of a cervical spine disorder. Furthermore, post-service treatment records reflect multiple MVAs and work-related injuries with contemporaneous reports of neck pain. Additionally, the appellant himself reported in March 1994 and August 1998 that his chronic neck pain was initiated by an MVA, and aggravated by subsequent MVAs. 

Furthermore, with the exception of reporting a history of neck pain since the early 1980's in October 1998, the appellant attributed his neck pain solely to such post-service events when seeking treatment and filing for disability benefits from SSA and the state of South Carolina. Cucuras v. Sec'y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (finding no error in fact-finder's decision to give more weight contemporaneous medical records generated for treatment purposes than to contrary lay testimony, reasoning that "[m]edical records, in general, warrant consideration as trustworthy evidence, and that "oral testimony in conflict with contemporaneous documentary evidence deserves little weight"); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Additionally, as to such single report of a history of neck pain since the early 1980's, the appellant did not report any specific injury that precipitated the onset of such complaints. Similarly, while Dr. R.K., Jr., reported that the appellant received chiropractic care purportedly for neck pain from October 1983 to September 1988, his treatment provider, Dr. R.K., Sr., could not recall the nature of such care.

Moreover, in his recent statements reporting the onset of his cervical spine disorder during ACDUTRA, the appellant downplays or ignores the impact of his multiple post-service MVAs and work-related injuries. Rather, he reported a single post-service MVA that aggravated his pre-existing cervical spine disorder (see January 2021 hearing transcript), which conflicts with his earlier statements documented in contemporaneous records that his cervical spine disorder started after service as a result of MVAs and work-related injuries.

Consequently, as the appellant's statements as to the onset of his cervical spine disorder in ACDUTRA and a continuity of symptomatology thereafter are inconsistent with his contemporaneous statements and related documentation, to include treatment records and disability determinations, the Board finds them to be not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lack of corroborating contemporaneous evidence may be a factor in determining credibility). Therefore, the appellant's statements in such regard are afforded no probative weight.

As to whether the appellant's current cervical spine disorder is related to his in-service injury, in September 2007, Dr. K.E., a private physician, stated that, to the best of her knowledge, the appellant's current chronic neck pain was associated directly with an injury during active duty in the fall of 1981 when he fell into storm drain. In February 2012 and February 2018, Dr. K.E. noted the appellant's injury in 1981 and his report that he has had chronic neck pain since such time, which he managed conservatively. However, she indicated that there was only one treatment record from 1990 during the period from 1981 to 1998. Dr. K.E. stated that it was the appellant's belief that his neck issues stem from his in-service injury and, while he admitted to further injury due to MVAs and work-related accidents, she believed that the pain began with the initial injury in 1981. Thus, Dr. K.E. opined that, in light of the appellant's assertion of what occurred and his medical history, it is at least as likely as not that his condition is related to service.

Additionally, a statement received in October 2019, Dr. W.S., another private physician, stated that he was treating the appellant for an old injury that he stated occurred in 1981 while in the military; however, no rationale was provided Nonetheless, in February 2021, Dr. W.S. again opined that the appellant's cervical spine disorder is due to the October 1981 in-service injury. In support thereof, he relied on his "credible" history of the event and since the event, and found that, in light of his well-documented medical history of complaints and treatment of the injury on ACDUTRA leads one to agree that the initial injury/mechanism of injury of falling into a storm drain and then being treated for such injury while on duty shows the injury to the cervical spine to be chronic in nature. He further stated that the appellant continued to treat his injury from the date of discharge, and sought medical care from a chiropractor, Dr. R.K., soon after he left the military. 

However, the Board observes that Dr. K.E.'s September 2007 and W.S.'s opinions are based on an inaccurate factual premise, i.e., that the appellant was involved in one MVA after service, as opposed to the 9 documented in his treatment records or the 19 to 20 MVAs he reported to the state of South Carolina, and do not address his post-service work-related injuries. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on inaccurate factual premise are not probative). Additionally, to the extent that all opinions, to specifically include Dr. K.E.'s February 2012 and February 2018 opinions, rely upon the appellant's reported onset of his cervical spine disorder and a continuity of symptomatology thereafter, the Board has found such to be not credible. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on veterans' statement renders a medical report not credible only if the Board rejects the statement of the veteran).

Furthermore, Dr. K.E. does not provide a rationale for her opinions beyond reliance on the appellant's statements, and Dr. W.S.'s statement that the appellant's STRs show that the injury to the cervical spine to be chronic in nature is directly contradicted by the fact that his STRs reflected normal cervical spine X-rays at the time of injury and the EPSBD the following month was devoid of any findings referable to a cervical spine disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, Drs. K.E.'s and W.S.'s opinions are afforded no probative weight.

Conversely, in October 2013, a VA examiner reviewed the record, interviewed the appellant, and conducted a physical examination, and opined that his cervical spine disorder was less likely than not related to service. In support thereof, she noted the appellant's STRs detailing his initial neck injury in October 1981; however, in such regard, she noted that the X-ray of the cervical spine was normal, and while a diagnosis of bruised back was rendered, there was no further mention of the neck. The VA examiner also observed the record does not show objective evidence of treatment for the neck after 1981 until 1990. In this regard, she noted that a February 2012 statement referred to treatment for neck complaints on one occasion in 1990 and the appellant admitted to "further injury to the [neck] area in MVAs and work-related accidents," and he "might have" had a workman's compensation claim for his neck, along with aggravation of his neck in several MVAs, "more than two." Thus, she opined the appellant's cervical spine disorder was less likely than not related to his in-service injury in 1981.

Furthermore, in October 2018, another VA examiner reviewed the record, interviewed the appellant, and conducted a physical examination, and opined that his cervical spine disorder was less likely than not related to his in-service fall into the storm drain. In support thereof, she noted that, while the October 1981 STRs reflect that he fell into a manhole and hurt his neck, the X-ray at such time revealed that his cervical spine was normal and, while subsequent STRs mention the back and left thigh, there was no further mention of the neck.

The Board affords great probative weight to the October 2013 and October 2018  VA examiners' opinions as to the etiology of the appellant's cervical spine disorder as such considered all of the pertinent evidence of record, to include his statements and relevant medical history, to include his multiple post-service MVAs and work-related injuries, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez; supra; Stefl, supra.

The Board also considered the appellant's assertions as to the etiology of his cervical spine disorder; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the spine and the impact a fall may have on it. Thus, such may not be competently addressed by lay statements. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the appellant's opinion as to the etiology of his cervical spine disorder is not competent evidence and, consequently, is afforded no probative weight.

Based on the foregoing, the Board finds that the appellant's cervical spine disorder is not shown to be causally or etiologically related to a disease or injury incurred during a period of ACDUTRA.  Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the weight of the probative evidence is against the appellant's claim for service connection for a cervical spine disorder.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. M. Kelly, 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.