Citation Nr: 18144792 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-20 936 DATE: October 25, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a neck condition has been received, the application to reopen is granted. REMANDED Entitlement to service connection for a neck condition, including a cervical strain, is remanded. FINDING OF FACT 1. An unappealed February 1996 RO decision denied service connection for a cervical spine condition. 2. Evidence submitted after the February 1996 rating decision bears directly and substantially upon the specific matters under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine condition. CONCLUSION OF LAW 1. The February 1996 RO decision denying entitlement to service connection for a cervical strain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to reopen the claim for service connection for a cervical spine condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156, 4.130 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1974 to December 1994. The Veteran requested a hearing on his formal appeal; however, he withdrew the request in a later correspondence. 1. Whether new and material evidence has been received sufficient to reopen a claim for cervical strain A. Finality By way of history, the Veteran filed an initial claim for compensation in February 1995, which was denied in July 1995 based on lack of in-service injury and the Veteran’s failure to appear for an examination. In August 1995, the Veteran submitted a notice of disagreement, with an explanation for missing the scheduled examination. The Veteran underwent a VA examination in January 1996. At that time, the Veteran had full range of motion of the neck with no pain or radiculopathy. The RO issued a subsequent rating decision in February 1996, denying the Veteran’s claim for service connection for a cervical strain. The basis of the denial was that there was an absence of evidence establishing a chronic disability of the neck that could be related to service. The Veteran was notified of the decision, but did not appeal, and there is no indication that new and material evidence was received within a year of this decision. The decision, therefore, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. B. New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for the Federal Circuit (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The Court has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence received since the February 1996 rating decision includes a VA examinations and treatment records, private medical records, and lay statements from the Veteran. This evidence was not of record at the time of prior decision, and relates to unestablished facts necessary to substantiate the claim. Diagnosis of chronic cervical strain and cervical spondylosis are shown. Therefore, the new evidence submitted after the February 1996 RO decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine condition. The claim for service connection for a neck condition, including cervical strain, is reopened. REASONS FOR REMAND Entitlement to service connection for a neck condition, including a cervical strain, is remanded The Veteran contends that he has a cervical spine, or neck condition related to his active service. On a general examination report in January 1996, the Veteran was noted to have neck pain without radiculopathy that started in about 1992. On VA examination in December 2014, the examiner noted the Veteran had a current diagnosis of a cervical strain. The examiner opined that the Veteran’s cervical spine strain was less likely than not incurred during military service based on service medical records containing a single note of neck pain in July 1994 with normal exam and a normal follow up x-ray of cervical spine in 1996 with no recurrence of the condition and no cervical spine joint findings or complaint during separation examination in 1994, which suggests the current neck condition is independent of military service. The Board notes, however, that the separation examination in 1994 mentions the Veteran had headaches from neck strain. Service treatment records also document the Veteran’s report of neck pain several times during service including January and December of 1992, and July 1994. The January 1996 VA examination had previously indicated the Veteran was experiencing neck pain at that time. The Veteran has denied experiencing any post-service neck injuries. For these reasons, the January 2015 examination opinion is inadequate because it is based on incorrect facts. A remand is necessary to cure this defect. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records regarding the Veteran, particularly concerning the Veteran’s cervical spine. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records. 2. Return the claims file, to include a copy of this remand, to the examiner who conducted the January 2015 VA examination, or another qualified examiner, to render an opinion on the appropriate diagnoses and etiologies of the Veteran’s neck condition(s). The examiner should review the claims file and indicate such on the examination report. The Veteran may be recalled for examination if deemed necessary. 3. The examiner should address the nature and etiology of the Veteran’s current cervical strain, and whether his current condition is consistent with the neck pain and injury reported in 1992 and 1994, and whether the Veteran’s current condition is as likely as not (50 percent probability or better) related to his claimed in-service injuries. A complete rationale for any opinion expressed must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel