Citation Nr: 22014141 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-20 012A DATE: March 11, 2022 ORDER New and material evidence has been presented, and the claim for service connection for a cervical spine disability is reopened. Service connection for a cervical spine disability is granted. REMANDED Service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. A November 1994 rating decision denied the Veteran's service connection claim for a cervical spine disability; the evidence received since the November 1994 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the service connection claim for a cervical spine disability, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 2. Resolving reasonable doubt in favor of the Veteran, her cervical spine disability was due to her active service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and the Veteran's service connection claim for a cervical spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to June 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from August 2011 and October 2013 Department of Veterans Affairs (VA) rating decisions. In June 2014, the Veteran requested a Board hearing. In August 2019, the Veteran requested to withdraw her request for a hearing. As such, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. Reopen Claim New evidence is defined as 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran filed a service connection claim for a cervical spine disability in June 1994, which was denied by a November 1994 rating decision. She did not submit any new and material evidence pertaining to this issue within a year of the rating decision, meaning that the November 1994 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the November 1994 rating decision, the evidence of record included the Veteran's service treatment records (STRs). The AOJ denied the claim as there was no evidence that a chronic cervical spine disability was due to her active service. In November 2010, the Veteran filed a request to reopen her previously denied service connection claim for a cervical spine disability. She asserted that her cervical spine disability was due to her active service. Evidence received since the November 1994 rating decision includes VA medical records, private medical records, and the Veteran's lay reports. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously denied claim. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Accordingly, the claim is reopened. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran asserted that her cervical spine disability was due to her active service. The Veteran sought treatment for neck pain on multiple occasions during her active service. A September 1992 treatment note shows that the Veteran complained of a history of neck pain and an assessment of muscle spasms. A January 1993 treatment note reflected complaints of severe neck pain and an assessment of cervical strain. A subsequent January 1993 treatment note shows a follow-up for c-spine muscle spasm pain. A January 1994 treatment noted reflected complaints of neck pain for three days and difficulty turning her neck to the left. Post-service medical records showed that the Veteran was diagnosed with degenerative changes of the cervical spine in June 2008. In November 2009, the Veteran complained of neck pain that was present for years and years. The clinician assessed chronic cervical spine pain with mild radiculopathy. A December 2009 letter from Dr. J. Y. stated that the Veteran had chronic neck problems for many years dating to her active service. At a March 2011 VA examination, the Veteran reported neck pain continuing since service and treatment for neck pain. The examiner diagnosed cervical spondylosis, now status post anterior cervical diskectomy and fusion from C5 to C7. The examiner noted that the record showed that during the Veteran's active service, she was seen multiple times for neck pain. The examiner indicated that the Veteran's neck pain was "related to basic training, carrying rucksacks and such." The examiner, after conducting a physical examination of the Veteran and reviewing the claims file, opined that the Veteran's cervical spine disability was at least as likely as not caused by or a result of her active service Resolving reasonable doubt in the Veteran's favor, service connection for cervical spine disability is warranted. The opinions of Dr. J. Y. and the March 2011 VA examiner are given significant probative weight, particularly the March VA examiner's opinion as it was based on a thorough review of the Veteran's medical history, consideration of the Veteran's competent and credible reports of in-service treatment for neck pain, and consideration of current symptomatology. In conclusion, the evidence supportive of the claim is at least in equipoise as the evidence against the claim. Therefore, reasonable doubt must be resolved in favor of the Veteran and service connection for a cervical spine disability disorder is granted. Accordingly, the criteria for service connection for a cervical spine disability have been met, and the claim is granted. REASONS FOR REMAND The Veteran asserted that her acquired psychiatric disorder was incurred in service and/or due to a service-connected disability. While the Veteran was afforded a VA examination in August 2013 for her acquired psychiatric disorder, the VA examiner did not offer an opinion regarding aggravation. Accordingly, this opinion is not adequate. As such, a remand is necessary to afford the Veteran a new VA examination with opinions on the cause of the Veteran's acquired psychiatric disorder. The matter is REMANDED for the following action: 1. Obtain all outstanding VA and/or private medical records that pertain to the Veteran's acquired psychiatric disorder, thoracolumbar spine disability, and cervical spine disability. 2. Then, schedule the Veteran for a VA examination to determine the cause of the Veteran's acquired psychiatric disorder. The examiner should respond to the following: a. Identify by diagnosis each current acquired psychiatric disorder found on examination. b. Is it at least as likely as not (50 percent or greater) that any acquired psychiatric disorder was caused by a service-connected disability? Why or why not? The examiner should discuss the lay statements of the Veteran regarding the cause of her acquired psychiatric disorder. c. Is it at least as likely as not (50 percent or greater) that any acquired psychiatric disorder was aggravated by a service-connected disability? Why or why not? (Continued on the next page) If aggravation is found, the examiner should identify the baseline level of severity of any acquired psychiatric disorder before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of any acquired psychiatric disorder. 38 C.F.R. § 3.310. d. If any acquired psychiatric disorder is determined to have not been caused or aggravated by a service-connected disability, identify the cause for the disability that is considered to be more likely, and explain why. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.