Citation Nr: 18143466 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-17 248 DATE: October 23, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for degenerative arthritis of the cervical spine, claimed as a neck condition, is reopened. REMANDED Entitlement to service connection for degenerative arthritis of the cervical spine, claimed as a neck condition, is remanded. FINDINGS OF FACT 1. An October 1997 rating decision denied the Veteran’s claim for entitlement to service connection for degenerative arthritis of the cervical spine; and the Veteran appealed the decision but subsequently withdrew the appeal. 2. Evidence added to the record since the final October 1997 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for degenerative arthritis of the cervical spine, claimed as a neck condition. CONCLUSIONS OF LAW 1. The October 1997 rating decision that denied the claim of entitlement to service connection for degenerative arthritis of the cervical spine is final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). 2. New and material evidence having been received, the claim for entitlement of service connection degenerative arthritis of the cervical spine, claimed as a neck condition, is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1970 to March 1972 and from September 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (ROs) in Des Moines, Iowa. In May 2018, the Veteran presented testimony at a Board hearing via video conference before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative arthritis of the cervical spine, claimed as a neck condition. Pertinent procedural regulations provide that “[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108].” 38 U.S.C. § 5103A(f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). 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, 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) In February 1997, the Veteran filed his original claim for entitlement to service connection for a neck disability. The RO denied the claim in an October 1997 rating decision. The Veteran filed a timely notice of disagreement in November 1997. The RO issued a statement of the case in February 1998, and the Veteran filed a VA Form 9 in the same month. However, in April 1998, he withdrew the appeal. Therefore, the October 1997 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). The Veteran filed a claim to reopen the issue of service connection for a neck condition in June 2013. The February 2014 rating decision on appeal denied the claims to reopen. The basis of the October 1997 prior final denial was the RO’s findings the condition neither occurred in nor was caused by service and that the first evidence of this condition was not shown until approximately five years after discharge from service. Thus, in order for the Veteran’s claim to be reopened, evidence must have been added to the record since the October 1997 rating decision that addresses this basis. Evidence submitted and obtained since the October 1997 rating decision includes VA treatment records and lay evidence. In particular, through various written statements and testimony at the May 2018 Board hearing, the Veteran provided lay statements that he suffered an injury to his neck when he hit his head on the ceiling of a vehicle while driving in the desert in 1991 during his Gulf War service. Without addressing the merits of this evidence, the Board finds that the additional evidence addresses whether the Veteran’s neck condition was related to his military service, and is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both “new,” as it has not previously been considered by VA, and “material,” as it raises a reasonable possibility of substantiating the Veteran’s claim. The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for degenerative arthritis of the cervical spine since the October 1997 rating decision. On this basis, the issue of entitlement to service connection for degenerative arthritis of the cervical spine, claimed as a neck condition, is reopened. REASONS FOR REMAND Entitlement to service connection for degenerative arthritis of the cervical spine, claimed as a neck condition, is remanded. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran claims the onset of the neck condition was in service. During the May 2018 Board hearing, the Veteran testified that he sustained a neck injury in 1991 while on active duty and has had neck pain and stiffness since he returned from his tour of duty in the Persian Gulf. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). The first medical evidence of record showing the Veteran’s cervical spine condition is dated 1995, approximately 4 years after separation from service. A November 1995 radiology report shows that the Veteran had degenerative changes in the cervical spine, with intervertebral neural foramina narrowing bilaterally at C5-6 and C6-7, as well as hyperkyphosis C4-5 with flexion indicative of previous trauma. Based on the foregoing evidence, the Board finds that a VA examination of the Veteran should be obtained so as to determine the etiology of his neck (cervical spine) disability. The matter is REMANDED for the following actions: 1. Obtain all updated VA treatment records from the Minneapolis VA Healthcare System (HCS) and any associated outpatient clinics dated from September 2018 to the present. All records and/or responses received should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination to determine whether there exists a relationship between his currently diagnosed cervical spine arthritis and service. The claims file must be made available to the examiner in conjunction with the examination. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner is requested to obtain a detailed history of the Veteran’s symptoms, review the record, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability had its onset in service, or is otherwise related to his military service, to include the claimed neck injury in 1991 on active duty. The examiner is asked to fully consider the Veteran’s lay statements regarding the onset and symptoms of the claimed disability. A complete rationale must be provided for the opinion offered. 3. After all requested action above is completed, the RO must readjudicate the Veteran’s claim on appeal, taking into consideration all newly acquired evidence associated with the claims file. If the benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel