Citation Nr: 0811501 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-00 137A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability, claimed as secondary to the veteran's service- connected left shoulder disability, and, if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disability, claimed as secondary to the veteran's service- connected left shoulder disability and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from July 1963 to July 1967. This appeal to the Board of Veterans' Appeals (Board) is from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Although the RO determined that new and material evidence had been submitted to reopen the appellant's claims, the Board must determine on its own whether new and material evidence has been submitted to reopen these claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The claim to reopen a claim for service connection for cervical spine disability is decided herein, while the remaining matters on appeal are addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. In an unappealed December 1998 decision, the Board denied service connection for cervical spine disability. 2. The evidence associated with the claims file subsequent to the Board's December 1998 decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a cervical spine disability; is not cumulative or redundant of evidence already of record; and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Legal Criteria In general, Board decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that 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) (2007). Analysis Entitlement to service connection for cervical spine disability was denied in an unappealed Board decision of December 1998 based on its determination that the claimed disability was not present within one year of the veteran's discharge from service and was not etiologically related to service or the veteran's service-connected left shoulder disability. The medical evidence then of record included service medical records detailing a shoulder separation injury that occurred in 1966, a post service October 1972 VA examination report that is negative for a neck disability, a May 1979 VA cervical spine X-ray report showing no significant abnormalities, and a January 1993 private chiropractor's report noting the veteran's history of a 1966 accident. A March 1993 VA examination report notes the presence of degenerative joint disease of the cervical spine. In addition, a March 1993 private chiropractor's statement notes the veteran's reported history of in-service trauma and an opinion that the veteran's spine was misaligned as a result of severe trauma. The veteran also underwent a VA neurology examination in April 1997 and a VA orthopedic examination in May 1997. The neurology examination was essentially normal. The orthopedic examiner's report notes scoliosis and degenerative changes, and concludes that the veteran's degenerative joint disease was unlikely to be traumatic, but such etiology was possible. Evidence submitted after the Board's December 1998 denial includes an April 2004 report from private chiropractor D.B., wherein the veteran's service medical records were noted to have been considered and an opinion was rendered that it was highly possible that the veteran's neck arthritis was a direct result of the veteran's in-service trauma. In support of the opinion, D.B. noted that damaged tissue from that trauma would have contributed over time to problems with surrounding tissue. The Board has determined that this opinion is new and material because the opinion is based, in part, upon a review of the veteran's service medical records, whereas the earlier medical opinions supportive of the claim were based primarily upon history provided by the veteran. ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a cervical spine disability, to include as secondary to the veteran's service-connected left shoulder disability, is granted. REMAND The veteran is also seeking to reopen a claim for service connection for disability of the lumbar spine, a claim which was also denied in the unappealed December 1998 Board decision. In March 2006, the U.S. Court of Appeals held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The record reflects that the veteran has not been provided Kent-compliant notice in response to this claim to reopen, to include notice that the earlier denial was based in part on the Board determination that the evidence failed to establish that he sustained a low back injury in service. With respect to the reopened claim for service connection for cervical spine disability, the Board notes that the veteran contends that his cervical spine disability is due to service injury or his service-connected left shoulder injury residuals. Although the veteran has submitted an April 2004 private chiropractor's opinion in support of his claim, the Board has not found it to be sufficiently persuasive, in light of the other evidence of record, to establish this claim. However, the Board does believe that the veteran should be afforded another VA examination to determine whether his current cervical spine disability is etiologically related to service or service-connected disability. The Board also notes that he has not been notified of the evidence required to establish a secondary service connection claim under 38 C.F.R. § 3.310 (2007). In light of these circumstances, the case is REMANDED to the RO or AMC in Washington, D.C. for the following action: 1. The RO or the AMC should send the veteran providing the notice required under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), to include notice that complies with Kent, supra, and notice concerning secondary service connection. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. If the RO of the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 3. Thereafter, the veteran should be afforded a VA examination by a physician with the appropriate expertise to determine the nature and etiology of any currently present disability of the cervical spine. The claims folders, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies and tests should be accomplished, and all clinical findings should be reported in detail. Based upon the claims folders review, the examination results and sound medical principles, the examiner should provide an opinion with respect to each currently present cervical spine disability as to whether there is a 50 percent or better probability that the disability is etiologically related to service or was caused or chronically worsened by a service-connected disability (residuals of a separated left shoulder). The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issues remaining on appeal based on a de novo review of the record. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs