BVA9502602 DOCKET NO. 91-43 454 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a disorder of the cervical spine. 2. Entitlement to an increased evaluation for status post left shoulder surgery with a scar, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson, III Counsel INTRODUCTION The veteran had active service from October 1967 to June 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Boston, Massachusetts, Regional Office (RO). Service connection for chronic cervical vertebrae strain was denied by a rating decision dated in January 1970. VA administrative records from the claims folder indicate that the veteran was notified of the denial in February 1970. A timely notice of disagreement was not filed. The Board remanded the case in December 1991 so that the RO could obtain additional clinical information and address the issue of whether new and material evidence had been submitted to reopen the claim of entitlement to service connection for a cervical spine disorder. A rating decision dated in May 1992 determined that new and material evidence to reopen the cervical spine disorder claim had been submitted. The case was remanded by the Board in February 1993 so that the RO could obtain additional clinical information and to consider the issue of service connection for the disorder of the cervical spine secondary to the service connected left shoulder disorder. An April 1994 rating decision, apparently revising the May 1992 rating decision, found that there had not been submitted new and material evidence to reopen the claim for service connection for the cervical spine disability. The RO did not address the issue of secondary service connection for the cervical spine disability. This issue, as well as the issue of an increased evaluation for status post left shoulder surgery with a scar, is dealt with in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran argues that the preexisting cervical spine disorder was aggravated during service and that additional evidence has been submitted which is sufficient to reopen the claim of entitlement to service connection for a disorder of the cervical spine. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been submitted to reopen the claim of entitlement to service connection for a disorder of the cervical spine. FINDINGS OF FACT 1. A January 1970 rating decision denied service connection for a chronic cervical disorder. The veteran was informed of the decision. He did not timely appeal. 2. The evidence that has been received since the January 1970 rating decision includes medical opinion that the veteran sustained a superimposed neck injury during service which aggravated the cervical spine disability. This evidence is not cumulative or redundant, and is also not only relevant and probative of the issue of entitlement to service connection for a disorder of the cervical spine, but presents a reasonable possibility of changing the outcome of the claim. CONCLUSION OF LAW Additional evidence received since the January 1970 rating decision with respect to service connection for a disorder of the cervical spine is new and material to reopen the claim. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156 (a), 20.302 (a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION We find that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is we find that he has presented a claim which is not implausible. We are also satisfied that all relevant facts have been properly developed. 38 U.S.C.A. § 5107(a). As previously indicated, a final rating decision dated in January 1970 denied service connection for a disorder of the cervical spine. The evidence considered at the time of the rating decision consisted of pre-induction physical examination records which reported a history of a pre-service injury to the neck in 1963; and full range of motion of the neck. The veteran had reported as history that because of a disc in his neck he could not do strenuous exercise or any heavy lifting. Service medical records through April 1968 show treatment for complaints of neck pain radiating into the low back, which in April 1968 was diagnosed as chronic cervical syndrome. Objective clinical findings from the service medical records were limited to cervical tenderness and some loss of the cervical lordosis. X- rays of the cervical spine were mostly negative. In December 1968 the veteran received treatment at a facility for recurrent left shoulder dislocation of two month's duration. It was reported that he had heard something "pop" and he could not move his left arm. He then was able to passively move his arm until he felt it "slip back in." The diagnostic impression was possibly recurring shoulder dislocation. At separation from service it was reported that the veteran had or had had back trouble. No cervical spine disorders were indicated on physical examination. VA medical, neurological, and orthopedic examinations were performed in December 1969. The veteran's history of an injury to the upper spine in 1963 was reported. It was indicated that since that time he had had recurring discomfort and pain in the neck which radiated down the back and into the right trapezius at times. Pain every three to four months in the cervical area was reported. A history of an injury to the low cervical and upper thoracic spine in 1965 or 1966 was also reported. Objective clinical findings were limited to tenderness over the C6 vertebrae on palpation which was reported in the orthopedic examination. An X-ray of the cervical spine was negative. The orthopedic diagnoses included chronic cervical vertebrae strain, obtained pre-induction in 1963. The neurological examination revealed no disease. The January 1970 rating determination reported the pre-induction cervical injury along with neck complaints during service, and it was essentially determined that the pre-existing cervical disorder did not undergo and increase in pathology during service. Since the January 1970 rating decision, additional evidence has been submitted. VA clinical records from the mid to late 1980's reveal treatment for left shoulder symptoms and degenerative changes of the cervical spine at C6-7. Received in October 1989 were employee compensation records from September 1988 revealing that the veteran was lifting parcels and suddenly experienced neck pain. The diagnosis was acute strain with underlying chronic condition of the cervical spine. On VA examination in April 1990, the veteran reported that in Vietnam in 1968, he fell, dislocating his left shoulder and hurting the left side of his neck. He gave essentially the same history on VA examination in February 1992. At a December 1993 VA medical examination, the veteran's pre- service neck injury and his service left shoulder injury were reported. Since his shoulder injury, it was reported that his neck problems had given him more problem. Left shoulder pain, post-surgery for recurrent dislocation, and posterior neck pain, from cervical osteoarthritis were the diagnoses. It was also reported that the left shoulder disability in itself could not cause or increase the cervical spine disability; however, the injury which caused the left shoulder disability made at the same time caused a whiplash type of injury to the neck, and led to worsening of the symptoms from cervical spondylosis. Analysis In a case where a final rating decision has been rendered, additionally submitted evidence must primarily be considered "new and material" or the appellant's claim cannot be reopened. Manio v. Derwinski, 1 Vet.App. 140 (1991). "New and material" evidence is that evidence which has not been previously submitted, which bears directly and substantially upon the specific manner under consideration, and which is neither cumulative nor redundant. To justify the reopening of a claim on the basis of "new and material" evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Also, Justis v. Principi, 3 Vet.App. 510 (1992) requires that the credibility of the additional evidence be presumed for purposes of determining if the case should be re- opened. The Board has reviewed the additional evidence which has been submitted since the 1970 rating decision. Among the evidence is medical history related by the veteran of superimposed neck injury in service. In addition, there is opinion from a VA physician to the effect that the claimed injury increased the severity of cervical spine disability. Presuming the credibility of this evidence, for the limited purpose of deciding whether the claim should be reopened, we find that this evidence is "new" in that it is neither cumulative nor redundant, and it also is relevant and probative to the issue of service connection for a disorder of the cervical spine. Furthermore, the evidence is "material" because, when considered in light of all the evidence, it presents a reasonable possibility of changing the outcome in the case. The evidence previously considered had not included medical opinion that there was an in-service injury causing increased cervical spine disability. We conclude that the aforementioned evidence which has been submitted since the January 1970 rating decision is both "new and material," and therefore, is sufficient to reopen the veteran's claim of entitlement to service connection for a disorder of the cervical spine. ORDER The claim of entitlement to service connection for a disorder of the cervical spine is reopened. REMAND The Board has determined that new and material evidence has been submitted to reopen the appellant's claim of entitlement to service connection for a disorder of the cervical spine. In view of the holding in Bernard v. Brown, 4 Vet.App. 384 (1993), and in order to prevent any prejudice to the veteran, this claim, which has been reopened by the Board, should be considered by the RO on a de novo basis. Furthermore, we note that the RO has not complied with the 1993 Board remand in addressing the issue of secondary service connection for the cervical spine disability. Finally, the record does not indicate that the VA physician's opinion in December 1993 was based upon review of the medical record, including the service medical records. These medical records do not corroborate the history currently provided in a number of respects, and should be considered before an opinion as to the relationship between cervical spine disability and service is rendered. In consideration of the foregoing, this case is REMANDED to the RO for the following: 1. The RO should ask the veteran to identify where he has received current treatment for the disabilities at issue. The RO should then take the necessary steps to obtain these records. 2. The RO should make the claims file and a copy of this remand available to the VA physician who examined the veteran in December 1993. The physician is requested to review the contents of the claims file before answering the following questions: (1) did any preexisting cervical spine disability undergo increase in severity in service; (2) if there was increase in severity in service, was this the result of the natural progress of the condition; and, (3) was degenerative disc disease of the cervical spine caused by an incident of service? The attention of the examiner is particularly directed to the fact that neither the service medical records nor the report of VA examination in 1969 reflect injury to the neck in service; that the service medical records show that the neck was symptomatic before, but not after, the traumatic dislocation of the left shoulder; and that there is no reference to cervical spondylosis until many years after service. The rationale which forms the basis of the opinion should be set forth in detail. 3. If the aforementioned examiner is not available, the veteran should be afforded another VA orthopedic examination for the specific purpose of obtaining an opinion on the questions set forth in paragraph 2 above. The examiner must be given a copy of this remand and the claims file before the examination, and this fact should be affirmatively noted in the examination report. 4. The RO should then adjudicate the issues on appeal. The issue of service connection for a disorder of the cervical spine should be considered on a de novo basis, encompassing all the evidence and arguments made by the veteran and on his behalf. The RO should also adjudicate the issue of service connection for the cervical spine disability secondary to the service connected left shoulder disability. When the requested development has been accomplished, if the claim remains in a denied status, and after completion of the usual adjudicative procedures, the veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, if necessary, the case and the requested evidentiary data should be returned to the Board of Veterans' Appeals for further appellate disposition. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).