Citation Nr: 1334592 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-02 669A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for degenerative disc disease (DDD) of the cervical spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1999 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut in August 2010, which declined to reopen the Veteran's claim of service connection for cervical spine DDD. The Veteran testified at a February 2012 videoconference hearing that was held before the undersigned. A transcript of those proceedings has been associated with the claims file. The issue of entitlement to service connection for cervical spine DDD (on a merit analysis) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed May 2006 rating decision denied service connection for degenerative disc disease of the cervical spine, finding that the evidence of record did not demonstrate that the claimed disability was manifested in, or otherwise related to, her active duty service. 2. Certain evidence received since the May 2006 decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonably possibility of substantiating the claim of service connection for degenerative disc disease of the cervical spine. CONCLUSIONS OF LAW 1. The May 2006 rating decision denying the Veteran's claim of service connection for degenerative disc disease of the cervical spine is final. See 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been received since the May 2006 rating decision, and the Veteran's claim for service connection for degenerative disc disease of the cervical spine is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In claims to reopen, VA must both notify a Veteran of the evidence and information necessary to reopen the claim and notify the Veteran of the evidence and information that is necessary to establish the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior final decision and provide the Veteran with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. As will be discussed below, the Board is reopening the claim of service connection for degenerative disc disease of the cervical spine. Therefore, any failure to provide compliant notice with regard to the Veteran's application to reopen these claims is not prejudicial to the Veteran. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Factual Background, and Analysis Initially, the Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In July 2005, the Veteran filed her original claim seeking entitlement to service connection for degenerative disc disease (DDD) of the cervical spine. The RO denied the Veteran's claim in a May 2006 decision. The Veteran was advised of this denial, but did not appeal, or submit new and material evidence in the year following. As such, the May 2006 decision became final. 38 U.S.C.A. § 7105. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, related to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 116-118 (2010). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). If a claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). As the May 2006 rating decision is the last final disallowance, the Board must review all of the evidence submitted since then to determine whether the Veteran's claim for service connection should be reopened and readjudicated on a de novo basis. Evans, 9 Vet App. at 282-83. The pertinent evidence of record at the time of the May 2006 rating decision included the Veteran's service treatment records; treatment records from Drs. Mohan and Reckart; a December 2005 initial patient examination for establishment of care at the VA medical center; MRI reports from November 2004 and July 2005; and a VA examination from March 2006. The evidence received since the prior rating decision includes: an April 2004 statement from the Veteran's ex-husband, attributing (based on his personal knowledge) the Veteran's neck pain to carrying load bearing equipment in service; medical records from Davis Monthan Air Force Base from May 2004 and October 2004; MRI reports from June 2006 and March 2010; treatment records of Dr. Guadanini from June 2006 to June 2010; VA treatment records from December 2005 through June 2010; a February 2012 medical opinion by Dr. Giannattasio; statements from the Veteran; and the Veteran's testimony at the February 2012 hearing. Because the Veteran's claim of service connection for cervical spine DDD was previously denied on the basis that such disability was not manifested in, or shown to be related to her service, for evidence to be new and material, it would have to tend to show that the Veteran's current cervical spine disability is related to her service. In this regard, the newly received evidence, specifically, the February 2012 opinion of Dr. Giannattasio concludes that the Veteran's cervical disc degeneration is at least as likely as not related to her military service. Additionally, the lay statement of the Veteran's ex-husband attributes her neck pain to carrying load bearing equipment in service. As the newly received evidence provides a possible causal relationship between the Veteran's cervical spine disability and her active duty service, the new evidence relates to an unestablished fact necessary to substantiate the claim for degenerative disc disease of the cervical spine and raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been received. As such, the claim for degenerative disc disease of the cervical spine is reopened. ORDER The appeal to reopen a claim of service connection for degenerative disc disease of the cervical spine is granted. To this extent only, the appeal is granted, subject to the directives in the following remand section of this decision. REMAND Further development is necessary prior to a merits analysis of the Veteran's claim of service connection for degenerative disc disease of the cervical spine. The record indicates the Veteran continues to seek (sporadic) treatment at the VA medical center (VAMC) in Newington, Connecticut. The last VA treatment record in the file is dated June 2010. Updated treatment records are pertinent to the instant appeal and must be obtained. 38 C.F.R. § 3.159(c)(2). Moreover, because it appears that the Veteran has undergone additional private treatment for her cervical spine disability, specifically with Dr. Giannattasio, an attempt to obtain any updated private treatment records must be made. 38 C.F.R. § 3.159(c)(1). Thereafter, the Veteran should be scheduled for a VA examination. VA must provide an examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which he qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with his service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d)(2) ; 38 C.F.R. § 3.159(c)(4) . As the Veteran has a current diagnosis of cervical spine DDD, and the claims file contains a private opinion suggesting a relation between the Veteran's current disability and her service, the Board must obtain a new medical opinion before adjudicating this claim. See McLendon, 20 Vet. App. 79; 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify the providers of all treatment she has received for her cervical spine disability (including Dr. Giannattasio) and to provide the authorizations necessary for VA to obtain all updated or outstanding records. The RO should secure for the record copies of the complete clinical records from the sources identified. 2. The RO must obtain copies of all relevant VA treatment records from the Newington VAMC from June 2010 to the present. 3. After the development sought above is completed, the RO should arrange for an examination of the Veteran to determine the nature and likely etiology of her cervical spine disability. The Veteran's claims file, including this remand, must be reviewed by the examiner in connection with the examination, and any tests or studies indicated must be completed. Based on a review of the record, and examination and interview of the Veteran, the examiner must provide opinions that respond to the following: Please identify the most likely etiology for the Veteran's cervical spine disability. Specifically, please indicate whether such is at least as likely as not (a 50 percent or better probability) related to an in-service injury or event, or is otherwise related to her active duty service. The examiner must explain the rationale for all opinions. 4. The RO should ensure that the requested development is completed and then re-adjudicate the Veteran's claim with consideration given to any additional evidence added to the claims file. If the Veteran's claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran, and her representative, the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs