Citation Nr: 22013789 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-29 215A DATE: March 10, 2022 ORDER The substantive appeal for the August 24, 2017, statement of the case as to a cervical spine disorder was timely, and the appeal is granted to this extent. New and material evidence having been received, reopening of the previously denied claim for service connection for a cervical spine disorder is granted. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. Equitable tolling is warranted for the time limit to file a substantive appeal, as the Veteran or his attorney did not receive the statement of the case (SOC) on a timely basis; and correspondence checking on the appeal status was deemed to be a substantive appeal and was received 69 days after the date on the SOC notice. 2. A rating decision with notice to the Veteran in October 1990 denied service connection for a cervical spine disorder; there was no timely notice of disagreement, and new and material evidence was not received within one year. 3. New evidence received since the prior denial is material because it is not cumulative or redundant of prior evidence, it relates to a necessary unestablished fact, and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The substantive appeal received on November 1, 2017, was timely filed during the equitable tolling period for the August 2017 statement of the case. 38 U.S.C. §§ 5107, 7105; 38 C.F.R. §§ 19.22, 20.200, 20.202, 20.302, 20.303. 2. The prior denial with notice in October 1990 was final, but the criteria to reopen the claim for service connection for a cervical spine disorder are met. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an administration decision by a Department of Veterans Affairs (VA) Regional Office (RO) in November 2017, which determined that a substantive appeal from the August 2017 statement of the case (SOC) was not timely. The Veteran testified as to this matter at a Board hearing in August 2021. As discussed below, the Board finds that the substantive appeal was timely filed. Therefore, the underlying appeal of the denial of a request to reopen the prior denial of service connection for a cervical spine disorder was also perfected for Board review. That appeal has been reactivated with the 2017 docket date, and the two issues have been merged into the earlier docket date and are addressed together in this Board decision. In December 2021, the Board provided 30 days for the Veteran and his attorney to submit additional evidence or arguments for the reopened claim. Additional evidence and arguments received in January 2022 warrant reopening and a remand. Although the Veteran's attorney initially requested a curriculum vitae or the qualifications of a VA examiner of this case, the January 2022 brief waived that prior request from June 2021, requesting the Board to proceed with adjudication. 1. Timeliness of substantive appeal The Veteran and his attorney assert that they did not receive the August 2017 SOC and, therefore, the substantive appeal on November 1, 2017, should be accepted as timely. As explained below, tolling is warranted and the appeal is granted. In the legacy system of VA appeals (for decisions prior to February 19, 2019), appellate review of a decision is initiated by a notice of disagreement and completed by substantive appeal after a statement of the case (SOC) is furnished. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.22, 20.200. A substantive appeal consists of a properly completed VA Form 9 ("Appeal to Board of Veterans' Appeals") or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the SOC to the appellant (and his or her appointed representative), or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.300, 20.302. The date of mailing of the SOC will be presumed to be the same as the date of the SOC, and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 19.30, 19.52. Upon request, the time period for filing a substantive appeal may be extended for a reasonable period for good cause shown. However, a request for such an extension should be in writing and must be made prior to the expiration of the time limit for filing the substantive appeal. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.303. In the legacy system of VA appeals, the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of both a notice of disagreement and a formal appeal. Roy v. Brown, 5 Vet. App. 554 (1993). Questions as to timeliness or adequacy of response shall be determined by the Board. 38 U.S.C. § 7105(d)(3). Additionally, receipt of a substantive appeal is not a mandatory jurisdictional requirement, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). There is a presumption of regularity that public officers, including VA employees, have properly discharged their official duties, and clear evidence to the contrary is required to rebut this presumption. Ashley v. Derwinski, 2 Vet. App. 307 (1992) (Board); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (Regional Office). The deadline for filing a substantive appeal is subject to equitable tolling. Hunt v. Nicholson, 20 Vet. App. 519, 524 (2006). Equitable tolling applies when there is: (1) an extraordinary circumstance; (2) that caused an inability to file during the requested tolling period; and (3) diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014); see also McCreary v. Nicholson, 19 Vet. App. 324 (2005). In other words, equitable tolling may be applied to a time limit when circumstances preclude a timely filing despite the exercise of due diligence. Bove v. Shinseki, 25 Vet. App. 136, 140 (2011). If shown, the "clock stops" and the requested period is not counted against the time period for filing. Id. Equitable tolling is not appropriate where the failure to file on time was due to general negligence or procrastination. Id. In this case, in September 2016, the Veteran initiated an appeal through a notice of disagreement (NOD) and requested review by a Decision Review Officer (DRO). The AOJ sent letters in September 2016 and on August 16, 2017, acknowledging receipt of the request for DRO processing and explaining the procedures, which may include the issuance of a new decision or a statement of the case (SOC). The August 24, 2017, SOC and notice letter reflect that they were mailed to the Veteran and his attorney (at the time, who was in the same firm as his current attorney), including the correct address the for the attorney's firm shown on their letterhead. On November 1, 2017, VA received a fax with a letter dated October 30, 2017, from the Veteran's attorney, which stated that they had not yet received any response to the request for DRO review. The letter further stated, "If a Statement of the Case has been issued, please treat this letter as a Substantive Appeal." On November 24, 2017, VA notified the Veteran and his attorney that the substantive appeal was not timely received because it was more than 60 days after the SOC, and more than one year after the rating decision in December 2015. On January 12, 2018, the Veteran's attorney submitted a notice of disagreement to this determination, stating that neither the Veteran nor the attorney had received the SOC, and the last item received was the acknowledgement of the prior NOD on August 17, 2017. During the August 2021 Board hearing, the Veteran's attorney made similar arguments, although the Veteran indicated that he believed he had received the SOC at some point in 2017, and he assumed that his attorney had also received it and would file the necessary forms to appeal to the Board. In October 2020 and October 2021, the attorney submitted arguments to this effect, asserting that the time period for filing the appeal should be tolled and it should be considered timely filed, along with an affidavit from a paralegal with the attorney's firm. The paralegal stated that she had been in this position since 2005, the Veteran had elected DRO review in the 2016 NOD, they received the August 17, 2017, letter explaining the DRO process, and their office sent the letter to VA dated October 30, 2017, to check on the status because it had been nearly a year since the NOD. The paralegal stated that during that time period she personally reviewed all incoming mail for the veterans department for the firm, and all incoming mail was scanned and saved digitally, and no copy of the August 24, 2017, SOC or notice of that determination was received at the firm. The first time the firm was aware of the SOC was on December 4, 2017, when the firm received the November 24, 2017, decision that the appeal was untimely. The paralegal further stated that the only firm only received a copy of the claims file in July 2017, before the SOC. There is no clear evidence to rebut the presumption of regularity in mailing the August 24, 2017, SOC, as it was sent to the correct address for the attorney and the Veteran, at which they received other notices, and there was no returned mail. However, there is sufficient documentation to support a finding that the attorney firm had not received the SOC prior to drafting the October 30, 2017, letter. The October 2017 letter itself, which was accepted as a substantive appeal received November 1, 2017, reflects that the firm had not yet received the SOC, and the paralegal affidavit in 2020 also recounts the detailed procedures followed. There is also no suggestion that the attorney had access to the electronic claims file at the time. These show an extraordinary circumstance that caused an inability to file and due diligence. Under these circumstances, the Board finds that tolling is warranted. 2. Reopening of prior denial of service connection for a cervical spine disorder In general, decisions of the agency of original jurisdiction (AOJ) that are not appealed within one year of notice of the decision are final. See 38 U.S.C. §§ 5104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. In the legacy system of VA appeals (for decisions prior to February 19, 2019), a final claim that was disallowed may only be reopened if new and material evidence is received. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a), (b). 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). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In other words, a "claim should be reopened if, in light of the other evidence of record and further VA assistance, [the] newly submitted evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim." Mitchell v. McDonald, 27 Vet. App. 431, 440 (2015). For the purposes of reopening, all new evidence received is presumed credible unless it is inherently or patently not credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1994). Once a claim is reopened, the Board may determine that the new evidence is not credible or is outweighed by other evidence in addressing the merits of the reopened claim. Shade, 24 Vet. App. at 117. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran's April 1990 claim for a cervical spine disorder, which he identified as a "broken neck" or "crack" in the cervical spine, was denied in a September 1990 rating decision, with notice to the Veteran in October 1990. The decision noted an in-service injury from a motor vehicle accident in March 1971 with a diagnosis of cervical muscle sprain and treatment through June 1971, as well as post-service studies in February 1990 noting cervical spine abnormalities suggesting an old trauma. A June 1990 VA examination noted the motor vehicle accident in service, as well as post-service injuries from working in a coal mine including in February 1990. Although x-rays of the cervical spine conducted for the VA examination were noted as normal, the examiner diagnosed osteoarthritis of the cervical spine. Thus, the decision found an in-service injury and current disability of osteoarthritis, but no nexus to service. The Veteran did not appeal, and no relevant evidence was received within one year after the decision. Therefore, the denial in 1990 became final. 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. To reopen the claim there must be new and material evidence concerning an unestablished element: primarily a nexus to service. The Veteran submitted his current claim in September 2015, identified as a claim for residuals of a cervical spine fracture, which he requested to reopen based on a March 1971 motor vehicle accident, now with cervical spondylosis, cervical stenosis, cervical arthrosis, and C5-C6 disc protrusion. The AOJ denied the request to reopen in a December 2015 rating decision, finding that additional medical records did not suggest a nexus to service, to include continuity of symptomatology or a persistent disability after the in-service injury. For his claim, the Veteran submitted copies of the February 1990 CT scan (which was already considered previously) and new private treatment records dated in 2013 and 2018. A May 2013 MRI of the cervical spine noted a history of cervical arthrosis and C5 radiculopathy, and gave impressions including mild cervical spondylosis, mild or moderate facet arthropathy, multilevel degenerative disc disease; multilevel central canal stenosis and foraminal stenosis. An August 2013 operative reported noted a diagnosis of severe degenerative disc disease at C5-6 and C6-7 with central canal disc stenosis at C5-6 and C6-7. The provider noted that the Veteran was 64 years old and was seen with complaints of severe neck pain and right arm pain, and the MRI showed severe stenosis which correlated with his right arm pain. An anterior cervical diskectomy and fusion at C5-6 and C6-7. A December 2018 private neurologic record noted a history of cervical spine surgery, with complaints of pain in the neck and shoulders and numbness in the hands. Neurologic testing (EMG and NCS) results showed bilateral moderately severe median neuropathy at the wrists and chronic sensorimotor polyneuropathy; however, there was no electrophysical evidence of cervical radiculopathy. The Veteran submitted a statement for his claim in September 2019, which described the circumstances of his in-service injury and treatment, as well as post-service symptoms and treatment. He asserted that as a result of this accident he has numbness in his arms and fingers, severe headaches, and backaches; and when he had a neck (cervical spine) fusion surgery, the surgeon said he could see an old injury in the cervical spine. The Veteran also stated that recently a neurosurgeon had told him he had the worst case of nerve damage he had ever seen on NCS, and he had both wrists operated on. He reported prior medical treatment from civilian doctors, but those providers had retired, and he had recently begun VA treatment. Although the above additional private records and statement from the Veteran are new, they are not material because they do not relate to the unestablished nexus. The prior evidence had also noted a possible prior injury in the cervical spine, as shown in the February 1990 imaging studies, and the Veteran had already described the circumstances and treatment for his injury in service, including during the June 1990 VA examination. Although new diagnoses are shown, a disability was already established previously; and the presence of additional or worsened disabilities after 1990 does not suggest a nexus to service. The Veteran described current symptoms that he believes are related to his cervical spine, but this relates to his current symptoms decades after service; it does not suggest continuity or ongoing symptoms since service to suggest a nexus. Thus, the new evidence summarized above does not relate to the unestablished nexus aspect. However, in January 2022, the Veteran's attorney submitted a private evaluation with a medical opinion that the current cervical spine disorder is as likely as not related to his in-service injury from the motor vehicle accident in 1971. This is new and material evidence, as it relates to a nexus to service and has a reasonable possibility of substantiating the claim when presumed credible for the purpose of reopening. Thus, the appeal to reopen the previously denied claim is granted. REASONS FOR REMAND 3. Entitlement to service connection for a cervical spine disorder Another medical opinion is warranted for this reopened issue. No VA examination or nexus opinion has been provided since the prior denial in 1990. A medical opinion should be obtained with consideration of the January 2022 private evaluation, which provides a nexus and additional medical opinions as to the possible nature of the Veteran's condition in service, but which does not address the significance of the post-service injuries from working in a coal mine. The private evaluation also stated on page 2 that there were only 13 pages to review, although there are 52 pages of service treatment records in the claims file, with more than 13 of them having notations relating to the cervical spine injury and treatment. The report also incorrectly stated on page 2 that medical notations as to the cervical spine in 1971 were after service; however, the conclusion and rationale section on page 4 appears to consider the 1971 notations as in service. This matter is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to address the nature and etiology of the Veteran's current cervical spine disorder, including arthritis or other disorders present since his April 2014 claim to reopen. (a.) The examiner should state whether it is at least as likely as not (50 percent or more probability) that the current disability had its onset in service or is otherwise related to the March 1971 motor vehicle accident in service; and whether it is at least as likely as not that within one year after service (by March 1973) the Veteran had undiagnosed arthritis to a compensable degree, to include painful motion with functional loss. (b.) The examiner should consider and address the significance of the following lay and medical evidence, along with other relevant evidence: i. the significance of having normal x-rays but no other imaging studies for the cervical spine during service through March 1972, and other relevant treatment notations in service, with consideration of the discussion contained on page 4 of the January 2022 private evaluation [See VBMS Medical Treatment Record Non-Government Facility, received 1/12/22]; ii. the significance of having suspected "old trauma" on cervical spine x-rays in February 1990 after a coal mine injury in February 1990; prior back surgeries in 1985 and 1987 from a ruptured disc from working in coal mines; and working in a coal mine for 16 years through February 1990 (or from approximately 1974 to 1990) [See VBMS initial claim VA 21-526, received 4/5/90; and VA examination, received 6/4/90]; iii. the Veteran's lay reports in September 2019 as to the circumstances of his in-service injury and treatment, post-service symptoms and treatment [See VBMS VA 21-4138 Statement in Support of Claim, received 9/30/19]. (c.) The examiner is advised that the Veteran is competent to report noticeable symptoms such as pain without documented medical treatment, although a lack of treatment may be relevant. (d.) The examiner should explain the reasons behind any opinions and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.