Citation Nr: 1803713	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  11-25 991	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a cervical spine fracture. 

2. Entitlement to service connection for a cervical spine disorder. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from March 1962 to March 1965 and from March 1965 to April 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2017, the Board remanded the appeal for a videoconference hearing. The Veteran appealed the remand to the United States Court of Appeals for Veterans Claims (Court) and by Order dated in June 2017, the Court dismissed the appeal for lack of jurisdiction.

In June 2017, a videoconference hearing was held before the undersigned Veterans Law Judge. At that time, the Veteran submitted additional evidence with a waiver of RO jurisdiction. 

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 

The issue of entitlement to service connection for a cervical spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDINGS OF FACT

1. In October 2004, the RO confirmed and continued the previous denial of service connection for residuals of a cervical spine fracture; a statement of the case was furnished in January 2006 but the Veteran did not submit a timely appeal. 

2. Evidence associated with the record since the October 2004 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating a claim of entitlement to service connection for a cervical spine disorder.


CONCLUSIONS OF LAW

1. The October 2004 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 

2. New and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Analysis

By way of history, the Veteran's claim of entitlement to service connection for residuals of a cervical spine fracture was originally denied in April 1969. Throughout the years, the Veteran has filed numerous claims to reopen with repeated denials. In pertinent part, in October 2004, the RO confirmed and continued the previous denial of service connection for residuals of a cervical spine fracture. The Veteran disagreed with the decision and a statement of the case was furnished in January 2006. The Veteran did not submit a timely VA Form 9 and the issue was not perfected for appeal. Thus, the October 2004 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 

In June 2010, the RO denied service connection for residuals of a cervical spine fracture because the evidence submitted was not new and material. The Veteran disagreed with the decision and perfected this appeal. 

A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. Id. 

In Shade v. Shinseki, 24 Vet. App. 110 (2010), 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."

Relevant evidence at the time of the October 2004 rating decision included service treatment records, select personnel records, VA administrative decisions, and the Veteran's statements and testimony. 

Service records show the Veteran was involved in two car accidents. The first accident occurred in April 1965 and his injuries included a severe closed head injury and a fracture of the mandible. The second accident occurred in March 1966 and his injuries included a cervical sprain and dislocation of C4 on C5 with fusion.  

A March 1966 DA Form 2173, Statement of Medical Examination and Duty Status, indicates that the Veteran was absent without authority at the time of the March 1966 accident. A June 1966 Report of Investigation, Line of Duty and Misconduct Status indicates the Veteran was dropped from the company rolls as a deserter on March 1, 1966. He claimed he was en route to Ft. Campbell to turn himself in when he was involved in the accident. While statements by the Veteran, T.G. and the military police indicate he was sincere in his effort to turn himself over to the military police, other evidence shows that he was present at Ft. Campbell before the accident, had the opportunity to turn himself in, but did not. Therefore, the reviewing authority found the accident and resultant injuries were "not in line of duty - not due to own misconduct." 

An April 1969 administrative decision concluded that the Veteran's injuries which he received in April 1965 and March 1966 were due to his own willful misconduct and not in the line of duty. In a February 1980 administrative decision, VA determined that the injuries sustained in the April 1965 accident were incurred in the line of duty and were not due to willful misconduct. The injuries sustained in the March 1966 accident were not incurred in the line of duty but were not due to willful misconduct. 

In various statements and hearings, the Veteran indicated that he turned himself in to the military police in Nashville, where they gave him money for gas and told him to proceed to Ft. Campbell. He contends he was under military control and not absent without authority at the time of the second accident. 

Since the October 2004 final decision, the Veteran has submitted a significant amount of evidence. Most of this is duplicate in that it was previously of record, or cumulative, in that it simply reiterates previous contentions. In the February 2017 written brief presentation, however, the representative argued that it was certainly plausible that a neck injury also occurred during the first accident, which was considered in the line of duty. 

At the June 2017 videoconference hearing, the representative argued that both accidents affected the cervical spine, but only one of the accidents was determined to be in the line of duty. 

The Board acknowledges the Veteran's contention that he injured his cervical spine during the April 1965 accident that was determined to be in the line of duty. Thus, the additional argument is considered new. It is also considered material in that it suggests a neck injury was suffered during an accident occurred in the line of duty. Accordingly, the claim is reopened herein. 38 C.F.R. § 3.156(a); Shade. The Board has rephrased the issue to consider entitlement to service connection for a cervical spine disorder, rather than limiting it to the residuals of a cervical spine fracture. 


ORDER

New and material evidence having been received, the claim of entitlement to service connection for a cervical spine disorder is reopened. 


REMAND

Having reopened the claim, the Board finds that additional development is needed. See 38 C.F.R. § 3.159(c).

First, the Veteran continues to assert that his second accident, which includes a documented cervical spine fracture, was determined to be in the line of duty. In various statements and testimony, he indicated he was tried at a Court-Martial and that they determined the accident was in the line of duty. See e.g., March 1995 RO hearing, p. 18. While the record contains select personnel records, it does not appear that complete service personnel records were obtained. This should be accomplished on remand. 

Second, the Board finds that a VA examination is warranted to determine whether the Veteran's current cervical spine disorder is related at least in part to the first accident. 

Accordingly, the case is REMANDED for the following action:

1. Request complete service personnel records, to include records of any disciplinary actions. All records received should be associated with the claims folder. 

2. Thereafter, schedule the Veteran for a VA cervical spine examination. The electronic claims folder must be available for review. 

The examiner is requested to identify all current cervical spine disorders and for each disorder, indicate whether it is at least as likely as not related to the April 1965 motor vehicle accident (accident #1). The examiner is requested to consider and discuss as necessary the April 27, 1965 University of Tennessee final note and discharge summary. The examiner is advised that the March 1966 motor vehicle accident (accident #2), wherein the Veteran suffered a cervical spine fracture, was determined to not be in the line of duty. 

A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

3. After the above development has been completed, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. 

The appellant has the right to submit additional evidence and argument on the matter or matters 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 (2012).




______________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs