Citation Nr: 18145853 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-40 369 DATE: October 30, 2018 ORDER The previously denied claim for service connection for disability of the cervical spine is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for disability of the cervical spine is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in May 2015, the Veteran was denied service connection for disability of the cervical spine. 2. The evidence associated with the claims file subsequent to the May 2015 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for disability of the cervical spine, is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for disability of the cervical spine. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1983 to April 1984. The previously denied claim for service connection for disability of the cervical spine is reopened. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, 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). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a May 2015 rating decision, the RO denied service connection for a cervical spine disability because the Veteran had previously been denied service connection for the condition in a prior final decision and there remained no evidence showing that the condition began in or was caused by military service. The Veteran did not appeal the May 2015 rating decision within a year, and, as such, it became final. In November 2015, the Veteran filed a formal claim for a temporary total rating due to neck surgery. However, no notice of disagreement as to the May 2015 rating decision was filed at that time or within the remainder of the one-year period from the date of mailing of the notice of the May 2015 decision. See 38 C.F.R. §§ 20.201, 20.302. As such, the May 2015 decision became final. The November 2015 claim was denied in a February 2016 rating decision, which the Veteran timely appealed via a March 2016 notice of disagreement. Since the prior final decision, an October 2015 primary care note associated with the claims file indicates that the Veteran presented regarding possible relation of his neck pathology to his service-connected right arm pain. The record reflects the Veteran’s report that while shoveling dirt in 1983, his shovel struck a metal plate and he injured his right arm. The Veteran indicated that he went to sick call and was given a splint for his wrist. He asserted that he was advised to be retrained because he was unable to maneuver bulldozer levers secondary to his pain. He also reported that he was unable to be retrained and was therefore medically discharged. He reported that shortly after, his neck began hurting in addition to his right arm. The examiner noted that the Veteran had recently undergone a surgical procedure of his neck intended to improve his right arm and neck pain. The examiner opined that because of this, one could surmise there may be a link to service. The October 2015 primary care note constitutes new evidence as it was not of record at the time of the prior final denial. As the opinion addresses a medical link between the Veteran’s cervical spine disability and his service, the evidence also speaks to a previously unestablished fact and has a reasonable possibility of substantiating the Veteran’s claim. As such, the evidence is also material. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010); 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for disability of the cervical spine is remanded. Although the October 2015 primary care note suggests a link between current disability of the cervical spine and service, the opinion is framed in rather speculative terms. As such, it is inadequate to support an award of service connection. Accordingly, and because a VA medical opinion with respect to the matter of direct service connection has not otherwise been procured, additional development is required. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in part, that an examination may be required under the provisions of 38 C.F.R. § 3.159(c)(4) if the record on appeal contains medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of his cervical spine. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a disability of the cervical spine that had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner should discuss the entry in an October 2015 primary care note to the effect that the Veteran had recently undergone a surgical procedure of his neck intended to improve his right arm and neck pain, and that, because of this, one could surmise there may be a link to service. The examiner should also discuss the Veteran’s lay statements with respect to the onset and progression of neck pain after service. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel