Citation Nr: 1752858 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-01 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disability. 2. Entitlement to service connection for a cervical spine disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran served on active duty from December 1988 to December 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran withdrew his request for a hearing before the Board in August 2016. He has not requested that the hearing be rescheduled. The hearing request is, therefore, considered to be withdrawn. See 38 C.F.R. § 20.704(e) (2017). The claim for service connection for a cervical spine disability was first adjudicated in an August 2002 rating decision that was not appealed to the Board. The Board finds that the benefits claimed and denied in August 2002 and the current claim are the same as the Veteran has identified the same disability and cause of said disability in each claim. The Board, therefore, does not construe the current claim as a claim for a "distinctly diagnosed disease" from the claim adjudicated in August 2002. As such, his current claim is not a separate and distinct claim, but rather a claim to reopen his prior determination. See Velez v. Shinseki, 23 Vet. App. 199 (2009). The reopened issue of entitlement to service connection for a cervical spine disability is REMANDED to the RO via the Appeals Management Center (AMC), and is discussed in the REMAND section of this decision. FINDINGS OF FACT 1. In August 2002, service connection for a cervical spine disability was denied; the Veteran failed to issue a proper notice of disagreement and new and material evidence was not submitted within one year of notice of that decision. 2. Evidence received more than one year after the August 2002 decision is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2002 that denied service connection for a cervical spine disability is final. 38 U.S.C. §§ 7104(b), 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2017). 2. Evidence received more than one year since the August 2002 decision is new and material and the claim is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in May 2008 and October 2009, prior to the initial adjudication of the issue on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained the Veteran's service treatment records and all identified VA and private treatment records. The Veteran has not identified any outstanding and available medical treatment records. In addition, the Board finds that the VA medical opinion evidence is adequate as it is predicated on an accurate reading of the service treatment records as well as the medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The issue on appeal was previously before the Board in April 2015, when it was remanded for additional development. In accordance with the remand instructions, the Veteran's service was verified, all available service treatment records were obtained, a VA examination and opinion was obtained and associated with the claims file, and a supplemental statement of the case was issued. Since the record reflects substantial compliance with the prior remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Generally, a claim which has been finally denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and 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. 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). Service connection for a cervical spine disability was initially denied in an August 2002 rating decision on the basis that while the Veteran received treatment for a cervical spine strain during service in December 1991, this injury was acute and did not result in a chronic cervical spine/upper back disability. The Veteran did not issue a notice of disagreement or new and material evidence within one year of that decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.202, 20.1103 (2017); cf. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156(c)). Since the 2002 decision, new evidence has been submitted which demonstrates current diagnoses of cervical spine strain as well as C6-7 disc bulge. In addition, the Veteran has testified that he has experienced neck pain ever since an in-service motor vehicle accident after which he was treated for cervical spine strain. As this new evidence pertains to a basis for the prior denial, namely whether the Veteran has a current, chronic disability related to service, the claim is reopened. ORDER New and material evidence having been received; the claim for service connection for a cervical spine disability is reopened. REMAND The December 2009 VA examiner provided the opinion that the Veteran's current cervical spine strain is not related to the cervical spine strain the Veteran was diagnosed with and treated for during service. However, the examiner failed to provide a rationale for this opinion. Moreover, the examiner did not consider the Veteran's complaints that he has experienced chronic neck pain ever since the in-service injury or the 2004 MRI evidence demonstrating a cervical spine disc bulge. As such, a new VA examination and opinion must be provided. All outstanding records of ongoing VA treatment must be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all records of ongoing VA and private treatment and provide releases authorizing VA to obtain all records of private treatment relevant to the claimed kidney disability(s). Obtain all identified VA treatment records and all identified/authorized private records. 2. Once the above development has been completed, provide the Veteran with a VA examination with a qualified physician to determine whether any currently diagnosed cervical spine disability is etiologically related to service or to service-connected diabetes. The claims file should be provided to and reviewed by the examiner. All necessary testing should be conducted. The examiner should identify all cervical spine disabilities and describe their manifestations. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current cervical spine disability, to include cervical spine strain and C6-7 disc bulge, had onset in service or is otherwise related to a disease or injury in service, including the confirmed in-service motor vehicle and cervical spine strain treatment. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate 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. §§ 5109B, 7112 (West 2012). _________________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs