Citation Nr: 18147492 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 17-39 785A DATE: November 5, 2018 ORDER The petition to reopen the claim for entitlement to service connection for a cervical spine disorder is granted. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. An unappealed February 2007 rating decision denied the petition to reopen the claim for a cervical spine disorder. 2. The evidence received since the February 2007 rating decision is not cumulative or redundant of that considered previously, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a cervical spine disorder. CONCLUSIONS OF LAW 1. The February 2007 rating decision denying the Veteran’s petition to reopen the claim for service connection for cervical spine disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the February 2007 rating decision denying the Veteran’s petition to reopen the claim for service connection for cervical spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1993 to February 1994, and from August 1997 to April 2000. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a cervical spine disorder. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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 C.F.R. § 3.156(a). The Court has 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”. The Court emphasized that the post-VCAA versions of this regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Initially, the Board observes that the Veteran filed the claim for entitlement for a neck condition in July 2003, which was denied in an unappealed May 2004 decision, because it was determined that the record did not show the Veteran had a current neck diagnosis although her service treatment records (STRs) showed complaints of neck pain following an April 1995 motor vehicle accident (MVA) and private chiropractic treatment records from June 1998 to July 1998 for neck pain. That May 2004 rating decision is final. 38 U.S.C. § 7105(c) (2014). The Veteran filed a request to reopen the claim in August 2006, which was denied in an unappealed February 2007 rating decision. The RO determined that while the Veteran had submitted new evidence by way of medical records reflecting treatment for chronic neck pain; a 2004 cervical spine X-ray showing loss of normal lordotic curvature of the cervical spine; and a June 2004 MRI revealing disc protrusion at C3-C4 and C4-05 with resultant compression of the cord and spinal stenosis; they were not material because they failed to establish the necessary link to her active duty. The February 2007 rating decision is also final. Id. Since the February 2007 rating decision, the pertinent evidence of record includes newly obtained private and VA medical treatment records showing treatment and diagnoses of additional cervical disorders (i.e. cervical disc disease, cervical radiculopathy secondary to cervical fusion). Significantly, a December 2014 private examination reflects diagnoses of cervical spondylosis, myelopathy and cervical stenosis, and notes that the Veteran was involved in an MVA in 1998 and subsequently underwent surgery. This evidence is not only new but also material, as it relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for a cervical spine disorder. Accordingly, the petition to reopen the claim for service connection for a cervical spine disorder is granted. See 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for a cervical spine disorder is remanded. A new VA medical opinion is warranted. The STRs show that the Veteran was in a MVA in June 1998. She sustained a whiplash type injury, and received several weeks of physical therapy. A December 1997 STR reflects notation of mid back pain from the neck. According to a May 2005 VA treatment record, the Veteran complained of chronic neck pain, and reported being in several car accidents, the last one being the June 1998 in-service MVA. She stated that she received chiropractic therapy for several weeks, but then was transferred to Germany and did not follow up with such treatment. In the August 2015 VA examination report, the examiner found against a relationship to the 1998 MVA because the Veteran’s cervical fusion occurred in 2013, about 15 years later. This opinion does not explain why the sole fact that there was a gap of years between the in-service MVA and the surgery supported the conclusion that they were not related. The examiner also stated that there were no cervical complaints following the MVA. However, the records show that the Veteran sustained a whiplash injury and reported cervical spine pain at the time of the June 1998 MVA, and has since reported cervical spine pain. The examiner also stated that her degenerative changes were age-related, without addressing the disc protrusion and anular tear diagnosed on MRI in 2003, or otherwise explain this conclusion. Therefore, the opinion is not sufficient to make an informed decision on the claim. The December 2014 private examination is also not sufficient. It reflects current diagnoses of cervical spine disorders, and notes the Veteran’s history of an MVA in 1998 and subsequent cervical spine surgery, but does not provide an opinion addressing whether the current diagnoses are related to the in-service MVA. The matter is REMANDED for the following action: 1. Add to the file any outstanding VA treatment records dated since October 2017. 2. Obtain a VA medical nexus opinion regarding the Veteran’s cervical spine disability, as specified below. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that any of the Veteran’s current cervical spine pathology is related to her in-service motor vehicle accident and symptoms of neck pain. The examiner must provide a complete explanation in support of the conclusion reached. (Please note: The August 2015 VA opinion is not sufficient, as it does not explain why the sole fact that there was a gap in time between the Veteran’s active service and her post-service cervical spine surgery led to the conclusion that her current disability was less likely than not related to service. It also does not account for her symptoms and pathology in the interim period.) J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel