Citation Nr: 22015915 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 16-40 593 DATE: March 20, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a neck strain, is reopened. To this limited extent only, the appeal of this issue is granted. New and material evidence having been received, the claim of entitlement to service connection for degenerative disk disease, cervical spine, status post cervical diskectomy and fusion (DDD, cervical spine), is reopened. To this limited extent only, the appeal of this issue is granted. Entitlement to service connection for a neck strain is granted. REMANDED Entitlement to service connection for DDD, cervical spine, is remanded. Entitlement to service connection for an upper back condition, to include as secondary to L5-S1 spondylolysis, status post posterolateral pedal screw instrumental at L5-S1 and transforaminal lumbar interbody fusion (lumbar disability), is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for a neck strain was first denied in a July 1983 rating decision that was not appealed and no further evidence relevant to the Veteran's service connection claim was submitted for a period of one year following notification of the July 1983 rating decision. 2. In a January 2011 decision, the Board denied the Veteran's claims for service connection for a neck strain and DDD, cervical spine. That decision is final. 3. Evidence submitted since the January 2011 Board decision is neither cumulative nor redundant of the evidence of record at the time of the January 2011 final denial and raises a reasonable possibility of substantiating the claim for service connection for a neck strain and DDD, cervical spine. 4. The Veteran's neck strain is at least as likely as not the result of an in-service motor vehicle accident. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 2011 Board decision became final; the criteria for reopening the previously denied claims for a neck strain and DDD, cervical spine, are met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for service connection for a neck strain disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in July 2021. A transcript is of record. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. A Board decision becomes final the date it is issued, which is the date stamped on the face of the decision. 38 U.S.C. § 511; 38 C.F.R. § 20.1100. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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 C.F.R. § 3.156 (a). The Veteran filed his initial claim of service connection for a neck strain in January 1983. The agency of original jurisdiction (AOJ) denied service connection for that claim in a July 1983 rating decision based on a finding that the Veteran's neck strain did not have any relationship to the in-service motor vehicle accident. VA notified the Veteran of that decision in a July 1983 notice letter. The Veteran did not submit any additional evidence respecting the claim or a notice of disagreement with the decision within one year of that notice letter. In January 2005 the Veteran submitted VA Form 9 (Appeal to the Board of Veterans' Appeals). The Veteran included reference to herniated disks in his neck. The AOJ treated the January 2005 Form 9 as a claim to reopen the previously denied claim of service connection for a neck strain and a new claim for DDD, cervical spine. The AOJ denied service connection for the neck strain claim in October 2005, March 2006, and November 2007 rating decisions because the evidence the Veteran submitted was not new and material. The AOJ denied service connection for DDD, cervical spine, in a March 2006 rating decision because the Veteran's service treatment records (STRs) do not contain a diagnosis of DDD, cervical spine, while he was on active duty, and VA previously denied the residuals of a neck injury. VA again denied the Veteran's DDD, cervical spine, claim in a November 2007 rating decision. In December 2007, the Veteran submitted a written statement disagreeing with the November 2007 rating decision, which VA treated as a Notice of Disagreement. VA issued a statement of the case (SOC) in June 2008 and the Veteran submitted VA Form 9 in July 2008. VA issued a supplemental statement of the case (SSOC) in October 2009 and again in July 2010. In January 2011, the Board combined the Veteran's neck strain and DDD, cervical spine, claims into a single claim and denied reopening the claim because evidence submitted after the March 2006 rating decision was not new and material. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. In October 2014, the Veteran called VA and, in part, requested VA establish a claim for an "upper back and neck condition." VA treated the Veteran's statements as a request for a new claim of service connection for an "upper back" disorder and a request to reopen his previously denied neck strain and DDD, cervical spine, claims. VA provided the Veteran a Thoracolumbar Spine examination in March 2015 and a Cervical Spine examination in April 2015. In April 2015, the AOJ reopened the Veteran's neck strain and DDD, cervical spine, claims and denied both because the evidence continued to show the Veteran's neck strain and DDD, cervical spine, were not incurred in or aggravated by his active-duty service. The Veteran disagreed with the decision and perfected this appeal to the Board. The Board acknowledges the April 2015 rating decision that led to the present appeal considered the Veteran's claims reopened; however, a determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Reopening for the issues of service connection for a neck strain and DDD, cervical spine, is warranted. VA provided the Veteran an examination in April 2015 that addressed the etiology of both the neck strain and DDD, cervical spine, conditions. Since this evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the Veteran's claim, the criteria for reopening the claim for a neck strain and DDD, cervical spine, are met. Service Connection Entitlement to service connection for a neck strain The Veteran contends his neck strain is the result of a motor vehicle accident that occurred while the Veteran served on active duty. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Resolving reasonable doubt in favor of the Veteran, the Veteran's neck strain is at least as likely as not related to the in-service motor vehicle accident. In June 1983, VA investigated whether the Veteran's in-service motor vehicle accident was incurred in the line of duty or the result of the Veteran's own misconduct. VA determined the July 1982 motor vehicle accident was in the line of duty. The Veteran's July 1982 STRs contain notations of the motor vehicle accident and the Veteran seeking treatment for neck pain. The Veteran's medical providers prescribed him a neck collar and pain medication, as needed. The Air Force issued the Veteran a physical profile in August 1982, indicating no physical training, no sports, no aerobics, no running, no marching, no painting, and no lifting greater than 15 pounds. The physical profile contains a diagnosis of cervical sprain, "flexion extension injury." VA provided the Veteran an examination in April 2015 to determine the nature and etiology of his neck disorder. The VA examiner diagnosed the Veteran, in part, with a cervical strain. The April 2015 VA examiner provided a positive nexus opinion, indicating the Veteran's cervical sprain is at least as likely as not incurred in and was caused by his in-service injury; the motor vehicle accident. The examiner reviewed the Veteran's STRs and conducted an in-person examination. In sum, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current neck strain is related to the in-service motor vehicle accident. After resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds that service connection for a neck strain is warranted. See Wise v. Shinseki, 26Vet. App. 517, 532 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits.") REASONS FOR REMAND 1. Entitlement to service connection for DDD, cervical spine, is remanded. The Veteran contends his DDD, cervical spine, is related to an in-service motor vehicle accident. VA provided the Veteran an examination in April 2015 to determine the etiology of his DDD, cervical spine; unfortunately, the associated medical opinion is inadequate to adjudicate the Veteran's claim. The April 2015 examiner provided a negative nexus because the Veteran's DDD, cervical spine, is unrelated to his in-service cervical strain. The examiner did not provide any additional explanation to support the negative conclusion. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). Accordingly, a remand is necessary to obtain a new medical nexus opinion. 2. Entitlement to service connection for an upper back condition, to include as secondary to a lumbar disability is remanded. The Veteran contends his upper back condition is a result of an in-service motor vehicle accident. In the alternative, the Veteran contends his lumbar disability caused or aggravated his upper back condition. VA provided the Veteran a thoracolumbar spine examination in March 2015; unfortunately, it is inadequate to adjudicate his claim. Although the March 2015 examiner only provided a negative secondary service connection medical opinion, the examiner, presumably, would have also offered a negative direct service connection opinion because the examiner concluded the Veteran does not have a current upper back condition diagnosis. The Veteran, however, has submitted lay statements reporting his upper back pain began after the in-service motor vehicle accident and he has experienced pain since. During the March 2015 examination, the Veteran reported his upper back pain began in 1983 and has continued since. The March 2015 examiner also noted the Veteran reported functional loss or impairment due to his upper back condition, including the inability to stand for long periods of time, difficulty turning around while driving, and difficulty sleeping. Even if there is no pathology to provide a diagnosis, pain alone can be a disability for VA compensation purposes if it produces functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment). A remand is necessary to determine if the Veteran's upper back pain produces functional impairment that may be related to the in-service motor vehicle accident. On remand, if the examiner determines the Veteran's upper back condition results in functional loss or functional impairment, the examiner must also provide a direct service connection opinion, to include as due to the motor vehicle accident. The matters are REMANDED for the following action: 1. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding the etiology of the Veteran's DDD, cervical spine. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The selected clinician must provide an opinion addressing whether the Veteran's DDD, cervical spine, is at least as likely as not (at least an approximate balance of positive and negative evidence) a result of an in-service event, disease, or injury, to include the in-service motor vehicle accident. The clinician must also opine as to whether it is at least as likely as not that the Veteran's DDD, cervical spine, is caused or aggravated by the now service-connected cervical strain. Please note that causation and aggravation are distinct concepts and must be addressed individually. The Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The selected examiner must provide a full rationale for his or her conclusion. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding the Veteran's service connection claim for an upper back condition. Schedule the Veteran for an examination only if deemed necessary by the clinician selected to provide the opinion. The examiner should opine whether the Veteran's upper back condition is at least as likely as not (at least an approximate balance of positive and negative evidence) the result of an in-service disease or injury, to include the in-service motor vehicle accident; AND whether it is proximately due to, or aggravated by, the service-connected L5-S1 spondylolysis, status post posterolateral pedal screw instrumental at L5-S1 and transforaminal lumbar interbody fusion. The secondary service connection opinion must address both causation and aggravation to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If the criteria for a diagnosis of an upper back disability are not met, the examiner should specifically state whether there is any functional impairment associated with the Veteran's complaints of pain in his upper back. The examiner must be advised that it is not necessary for the pain to be attributed to a specific diagnosis to be considered a service-connected disability so long as the pain is productive of functional impairment. If there is functional impairment, the examiner should offer an opinion as to whether it is at least as likely as not (at approximate balance of positive and negative evidence) that such impairment is associated with the Veteran's service, to include the in-service motor vehicle accident; AND whether it is proximately due to, or aggravated by, the service-connected L5-S1 spondylolysis, status post posterolateral pedal screw instrumental at L5-S1 and transforaminal lumbar interbody fusion. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. (Continued on the next page) All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.