Citation Nr: 18152988 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-40 535A DATE: November 27, 2018 ORDER The application to reopen a claim of entitlement to service connection for a cervical spine (neck) disorder is denied. FINDINGS OF FACT 1. A December 2002 RO decision denied the Veteran’s claim of entitlement to service connection for a cervical spine (neck) disorder, characterized as sprain, muscles, and ligaments of the neck. The Veteran did not appeal or submit new and material evidence within one year. 2. Evidence received subsequent to the December 2002 RO decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a cervical spine (neck) disorder. CONCLUSIONS OF LAW 1. The December 2002 rating decision that denied the Veteran’s claim of entitlement to service connection for sprain, muscles, and ligaments of the neck is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2018). 2. New and material evidence has not been received to reopen the claim of service connection for a cervical spine disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1965 to December 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran is unrepresented in this appeal. A note in the Board’s Veterans Appeals Control and Locator System (VACOLS) and a November 2018 report of general information indicate that the Veteran no longer desires a Board hearing. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). In a December 2002 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a cervical spine (neck) disorder, characterized as sprain, muscles, and ligaments of the neck. The Veteran did not appeal or submit new and material evidence within one year. The December 2002 rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the December 2002 denial included the Veteran’s STRs, private treatment records, an October 2002 VA examination, and a May 2002 letter from the Veteran’s private physician (AG, MD). Service treatment records (STRs) indicate that on May 10, 1965, the Veteran underwent an Air Force physical entrance examination that noted no cervical spine disability. STRs note that on May 18, 1965, the Veteran was involved in a motor vehicle accident that required a week’s hospitalization and traction for “whiplash.” The Veteran entered active duty on May 28, 1965. During basic training the Veteran began having problems with his neck and was seen for several occasions with findings that included neck strain secondary to a motor vehicle accident with some limitation of neck extension and persistent pain. August 1965 X-rays were negative. A September 1965 STR noted a tender midline cervical spine with generalized guarded range of motion and no neurovascular deficits. A later dated September 1965 STR indicated no improvement with tenderness in the posterior cervical spine and inter-scapular areas, with guarding during range of motion testing but normal neurologically. The assessment was acute cervical sprain. An October 14, 1965 Medical Examination Board (MEB) indicated that a sprain of the muscle and ligaments of the neck existed prior to the Veteran’s service and had been permanently aggravated by the Veteran’s service. An October 18, 1965 Physical Evaluation Board (PEB) noted that the Veteran had slight limitation of motion of the cervical spine which existed prior to service and was not aggravated by his military service. In a May 2002 letter, the Veteran’s private physician stated that he had been treating the Veteran’s chronic neck pain for years. Dr. G noted that the Veteran had indicated that he had such problems since service. Dr. G stated that, based on the Veteran’s history, “it is my impression that [the Veteran’s] continuing problems in the cervical spine were aggravated by the aggravation of his cervical condition in the service." An October 2002 VA spine examination’s diagnoses included cervical muscle spasming and cervical muscle strain, recurrent, and status post fusion of cervical spine at C4-05, C5-C6, and C6-C7 in 1986. A detailed medical history (pre-service, service, and post-service) from both clinical records and the Veteran himself was provided. An occupational history was also noted, revealing that the Veteran had worked for 10 years as a welder following service. The examiner did not address the etiology of the cervical spine diagnoses or provide any opinions concerning aggravation of the Veteran's cervical spine during service. Evidence of record submitted since the December 2002 denial includes the Veteran's statements as well as private medical records. A May 2014 VA spine examination with medical opinion has also been associated with the claims file. The May 2014 VA physician performed a contemporaneous examination and essentially reviewed and discussed the claims file's complete pertinent evidence, including the Veteran's lay statements. The May 2014 VA examiner stated that it was not likely that the Veteran’s cervical spine condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by the Veteran's military service. The May 2014 VA examiner noted that the Veteran had not sought medical treatment for his neck problems until many years following service. The examiner also noted Dr. G's May 2002 letter but asserted that the letter contained a contradiction. The May 2014 VA examiner then stated as follows: "The Veteran had [obvious] pre-existing and ongoing neck symptoms as he was utilizing a neck brace at time of induction. Multiple in-service visits without specific re-injury also support the ongoing condition. Hyperextension injury may have a prolonged recovery period, equal or greater than the time the Veteran was serving in the military. Given the Veteran’s occupational history, there may have been significant improvement after military separation. The Veteran did not seek treatment for a neck condition until about 1983 or 1984, some 18 years after military separation. There are no evidenced medical records noted after separation concerning a neck condition until about 1998, which notates the 1986 surgery and improvement until the WC injury in 3/1998. Chronic neck strain, as noted on the PEB report, can lead to biomechanical adaptions in the cervical spine resulting in vertebral discs degeneration and bone spurs (osteoarthritis) formation. However, as the Veteran did not seek treatment for a neck condition until the 1980s, this suggests the neck condition was perhaps not chronic, and therefore was also unlikely to have been aggravated by military service." The May 2014 VA examiner concluded by stating that the majority of the Veteran's current spine disease and symptoms "were related to the degenerative changes of aging, from the 1986 surgery and from the intercurrent W/C 1998 cervical injury, rather than the pre-military cervical strain." Analysis The Board finds that new and material evidence has not been presented. The evidence added to the claims file subsequent to December 2002 is new in that it was not previously submitted, but the Veteran's newly statements and private medical records are simply cumulative and redundant as that evidence was of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). The Veteran's statements submitted since the December 2002 denial simply repeat his assertions that he had neck problems since service and that his service had chronically worsened his neck disability. These assertions were of record at the time of the December 2002 denial. Further, the May 2014 VA examination and opinion does not relate to any unestablished fact necessary to substantiate the claim. Although the RO's June 2014 decision reopened the claim on the basis that new and material evidence had been submitted, there was little or no discussion as to how that evidence was not cumulative or redundant from that already of record at the time of the December 2002 RO decision. As noted, the Board must make its own determination, and for all of the above reasons, the Veteran’s claim is not reopened. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson