Citation Nr: 22015544 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 20-19 070 DATE: March 18, 2022 ORDER Entitlement to service connection for Meniere's disease is dismissed. Entitlement to service connection for otitis media is dismissed. Entitlement to service connection for a peripheral vestibular disorder is dismissed. New and material evidence having been received, the claim of entitlement to service connection for a thoracolumbar spine condition, to include degenerative arthritis and degenerative disc disease (DDD), is reopened. Moreover, entitlement to service connection for a thoracolumbar spine condition, to include degenerative arthritis and DDD, is granted. Entitlement to service connection for a cervical spine condition, to include cervical spondylosis (also claimed as cervical segmental dysfunction), degenerative arthritis, and DDD, is granted. Entitlement to service connection for bilateral upper extremity nerve impairment, to include thoracic neuritis and cervicobrachial syndrome (also claimed as brachia neuritis), as secondary to the now service-connected thoracolumbar and cervical spine conditions, is granted. FINDINGS OF FACT 1. During his November 2021 hearing before this Board, so prior to the promulgation of a decision in this appeal, the Veteran withdrew his claims for service connection for Meniere's disease, otitis media, and a peripheral vestibular disorder. 2. He did not submit a Notice of Disagreement (NOD) or Substantive Appeal (VA Form 9 or equivalent statement) in response to an October 2010 rating decision previously considering and denying his claim of entitlement to service connection for lumbar spine DDD. 3. Additional evidence since submitted or otherwise obtained, however, when considered with the record, as a whole, is not cumulative and redundant of the evidence of record at the time of that last prior final and binding denial of this claim and raises a reasonable possibility of substantiating it. 4. It is just as likely as not the Veteran's thoracolumbar and cervical spine disabilities are related or attributable to his service. 5. His bilateral upper extremity nerve impairment is caused by his thoracolumbar and cervical spine disabilities. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeal of the claims for service connection for Meniere's disease, otitis media, and a peripheral vestibular disorder. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The October 2010 rating decision that earlier considered and denied the claim for service connection for lumbar spine DDD is final and binding based on the evidence then of record. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2018). 3. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for thoracolumbar and cervical spine disabilities and for secondary bilateral upper extremity nerve impairment. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to June 1990. The Veteran testified in support of these claims during a November 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board has advanced this appeal on the docket. 38 U.S.C.A. § 7107(a)(2); 38 C.F.R. § 20.902(c). One other initial point also worth noting is that the Veteran filed claims for service connection for each of the diagnoses relating to his spine and associated nerve condition. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that, although a Veteran claims entitlement to service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, rather, must be considered a claim for any disability that reasonably may be encompassed by several factors including the Veteran's description of the claim, the symptoms he describes, and the information he submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board therefore finds that, pursuant to the holdings in Clemons, his claims should be recharacterized more generally as for a thoracolumbar spine condition, inclusive of degenerative arthritis (i.e., degenerative joint disease (DJD)) and DDD, for a cervical spine condition, including cervical spondylosis (also claimed as cervical segmental dysfunction), degenerative arthritis, and DDD, and for bilateral upper extremity nerve impairment, including thoracic neuritis and cervicobrachial syndrome (also claimed as brachia neuritis) as secondary to the thoracolumbar and cervical spine conditions. See Clemons, 23 Vet. App. at 1. Withdrawn Claims 1. Entitlement to service connection for Meniere's disease 2. Entitlement to service connection for otitis media 3. Entitlement to service connection for a peripheral vestibular disorder The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be by the appellant or authorized representative. 38 C.F.R. § 20.204; Anderson v. Brown, 9 Vet. App. 542 (1996). Withdrawal of a claim is only effective when the withdrawal is explicit, unambiguous, and done with full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Hanson v. Brown, 9 Vet. App. 29 (1996). A withdrawal is effective upon receipt of the request. 38 C.F.R. § 20.204(b)(3). During his November 2021 hearing before this Board, the Veteran and his representative indicated they are no longer appealing the claims for service connection for Meniere's disease, otitis media, and a peripheral vestibular disorder. Their statement of intention to withdraw the appeal of these claims satisfies the requirements for their withdrawal. Although the Court has distinguished written withdrawals from those, instead, done on the record orally during a hearing, here, the record shows the Veteran decided to withdraw the appeal of these claims after discussion with his representative, and the request to withdraw the appeal of these claims is "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio, 25 Vet. App. at 57; see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Moreover, the testimony during the hearing so including the oral withdrawal of these claims, since has been transcribed, so reduced to writing. Hearing testimony, once transcribed, can satisfy the requirement that a statement be "in writing". See, e.g., Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Thus, as the Veteran has withdrawn his appeal of these claims for service connection for Meniere's disease, otitis media, and a peripheral vestibular disorder, there remain no allegations of error of fact or law for appellate consideration concerning them. Accordingly, the Board does not have jurisdiction over these claims and, consequently, they are summarily dismissed. New and Material Evidence 4. New and material evidence having been received, the claim of entitlement to service connection for a thoracolumbar spine condition, to include degenerative arthritis (DJD) and DDD, is reopened. Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, according to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary 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 is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed unless inherently incredible (patently false or untrue) or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Regardless of the local Regional Office's (RO's) determination as to whether new and material evidence has been received, the Board must address this issue preliminarily, so in the first instance, because this initial determination affects the Board's jurisdiction to reach the underlying claim to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the claim and readjudicate it in light of all the evidence. Justus, 3 Vet. App. at 512. But once the claim is reopened, the presumption of credibility regarding this evidence no longer applies. Id. at 513. If, on the other hand, the Board determines there is not the required new and material evidence to reopen a claim, that is where the analysis ends because further consideration of the claim is neither required nor permitted. See Barnett at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In this case at hand, the Board finds that the required new and material evidence has been submitted since the last final and binding denial of this claim to permit reopening it. 38 C.F.R. § 3.156(a). This claim for service connection for lumbar spine DDD was previously considered and denied in an October 2010 rating decision on the basis that the evidence then of record failed to show this claimed condition was incurred in caused by the Veteran's service. But he testified during his more recent November 2021 hearing before this Board that he injured his back in March 1974 as part of a parachuting exercise for SEAL training. He also since has submitted a supporting October 2017 Disability Benefits Questionnaire (DBQ) and private medical nexus opinion from Dr. R.N.L., as well as an even more recent January 2022 private medical nexus opinion from Dr. J.N.H. suggesting this condition may be attributable to the Veteran's military service and, in fact, as likely as not is. This additional evidence is new and material to the claim since not before the local RO when it previously considered and denied this claim, and this evidence is not cumulative or redundant of the evidence then of record. This additional evidence also raises a reasonable possibility of substantiating this claim since, as mentioned, the Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it, and this evidence tends to attribute the Veteran's lumbar spine disability to his service. See Shade, 24 Vet. App. at 117. Therefore, in this sense this evidence also is material. Accordingly, this claim for service connection for a thoracolumbar spine condition, including degenerative arthritis (DJD) and DDD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection 5. Entitlement to service connection for a thoracolumbar spine condition, including degenerative arthritis (DJD) and DDD, is granted. 6. Entitlement to service connection for a cervical spine condition, to include cervical spondylosis (also claimed as cervical segmental dysfunction), degenerative arthritis, and DDD, also is granted. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). There is no disputing the Veteran has diagnosed thoracolumbar and cervical spine disabilities. What therefore must be resolved, instead, is whether these disabilities are attributable to his military service, either in terms of direct attribution of his back and neck disabilities to his service and insofar as whether his additionally claimed bilateral upper extremity nerve impairment is secondary to, meaning caused or aggravated by, his claimed thoracolumbar and cervical spine disabilities. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). On this determinative issue, there is probative (competent and credible) evidence both for and against the claims. As already alluded to, the Veteran contends that, in March 1974, he sustained injuries while parachuting during qualification week for SEAL training. See, e.g., August 2017 D.L.T. Buddy Statement; March 2018 Notice of Disagreement (NOD); November 2021 Veteran Statement. He then went on to explain that he continued his training ("sucked it up" and "soldiered on" and for the remainder of his service to stay in SEAL school and advance in his military career), and that he later attended HALO/Free Fall school. See November 2021 Veteran Statement. In 1975, he again suffered a hard landing in Alaska. Id. He was required to perform qualifying jumps quarterly as part of his recertification until 1978. Id. In support of his claims, the Veteran submitted an October 2017 DBQ and private medical nexus opinion from Dr. R.N.L., as well as a more recent January 2022 private medical nexus opinion from Dr. J.N.H., collectively suggesting these conditions may be attributable to his military service. Specifically, Dr. R.N.L., noted that, regarding the Veteran's thoracolumbar spine, he has diagnoses of mechanical back pain syndrome, thoracic segmental dysfunction, DDD, and associated radiculopathy. And, as for his cervical spine, he also has mechanical back pain syndrome, cervical spondylosis, segmental dysfunction, and associated radiculopathy. Dr. R.N.L. indicated the DDD in both the Veteran's lower cervical spine and mid thoracic spine is suggestive of being the result of a very forceful injury to his torso, which can occur from HALO jumps or from very forceful parachuting incidents. Due to the location straps of a parachute, this dynamic of forceful flexion to both the cervical and upper and mid thoracic regions simultaneously is easily possible. Therefore, in reviewing the Veteran's history, matched with both subjective complaints and objective examination findings, in addition to X-ray findings, Dr. R.N.L. concluded the Veteran's current state of advanced DDD is more likely than not caused by his former parachuting accident and injury in service. Following the more recent November 2021 hearing before this Board, Dr. J.N.H. provided similar rationale in his January 2022 supporting medical nexus opinion. He stated that the evidence for acute trauma and cumulative micro-trauma to the spine in the Veteran's case is overwhelming. Even without specific episodes of trauma, the military and scientific literature confirms that parachuting creates a high risk for development of spondylosis. It is as likely as not that his degenerative spondylosis of the cervical and thoracic regions is a result of his military service. The specific injuries to his thoracic spine, as well as the parachute opening shock to the lower cervical and thoracic spine, have as likely as not been major contributing factors to his disabling spine pain. On the contrary, September 2010 and January 2018 VA examination reports weigh against the Veteran's claims. Specifically, the September 2010 VA examiner opined that the Veteran's lumbar spine DDD was less likely than not incurred in or caused by his service. Similarly, the January 2018 VA examiner concluded the Veteran's cervical segmental dysfunction is less likely than not related to his military service. In making these determinations, however, both the September 2010 and January 2018 VA examiner relied exclusively on the absence of diagnoses, treatment, or symptoms in the Veteran's service treatment records (STRs). See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). During his hearing, the Veteran provided explanation of why there is not more documentation in his STRs, and his hearing testimony concerning this is credible. Normally, according to the holding in Barr v. Nicholson, 21 Vet. App. 303 (2007), the deficiencies in the September 2010 and January 2018 VA examination reports and opinions might require remanding these claims to obtain clarification or all necessary additional information or comment. However, since the October 2017 DBQ and private medical nexus opinion from Dr. R.N.L. as well as the more recent January 2022 private medical nexus opinion from Dr. J.N.H., are as probative (meaning as competent and credible), if not more so, than the September 2010 and January 2018 VA medical opinions against the claims, the Board is going ahead and granting these claims for service connection for thoracolumbar and cervical spine disabilities. When, as here, at the very least, the evidence is in relative equipoise meaning as supportive of the claims as it is against them, the claims must be granted rather than denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. The claims resultantly are being granted given this "approximate" (nearly equal) balance of evidence for versus against them, if not more favorable to them. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 7. Entitlement to service connection for bilateral upper extremity nerve impairment, including thoracic neuritis and cervicobrachial syndrome (also claimed as brachia neuritis) as secondary to the now service-connected thoracolumbar and cervical spine conditions, is granted. Service connection may be established, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) and (b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. The findings of the January 2018 VA examiner as well as Drs. R.N.L. and J.N.H. establish the Veteran's bilateral upper extremity nerve impairment, including his thoracic neuritis and cervicobrachial syndrome (also claimed as brachia neuritis), is caused by his service-connected thoracolumbar and cervical spine disabilities. Thus, this claim also is being granted since this bilateral upper extremity nerve impairment has been associated with service-connected disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.