Citation Nr: 18159373 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-62 354 DATE: December 19, 2018 ORDER New and material evidence has been received to reopen the appeal for service connection for a cervical spine (neck) disability. REMANDED Entitlement to service connection for a cervical spine (neck) disability is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in April 2015, the Veteran was denied service connection for a cervical spine disability. 2. The evidence associated with the claims file subsequent to the April 2015 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a cervical spine disability, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disability. 38 U.S.C. § 5108 (West 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 June 1981 to April 1984. As to the Veteran’s claims for service connection for multiple sclerosis, depression, and anxiety, these appeals have been granted during the appeal period in a July 2018 rating decision. Specifically, as to the Veteran’s psychiatric conditions, she has been granted service connection for major depressive disorder, generalized anxiety disorder, and unspecified mild neurocognitive disorder (formerly claimed as depression and anxiety). As the grants represent a full grant of the benefits sought, these issues are no longer on appeal. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). New and Material Evidence 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. Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100(a). 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). The United States Court of Appeals for the Federal Circuit 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 (2000). 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). Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disability In an April 2015 rating decision, the Veteran was denied service connection for a cervical spine disability for lack of a current diagnosis and based on an April 2015 VA opinion linking the Veteran’s neck disability to a post-service motor vehicle accident. The Veteran did not appeal the April 2015 decision within a year, and, as such, it became final. The Board acknowledges that the Veteran submitted a new claim for service connection for a cervical spine disability in September 2015. However, this claim may not be construed as a notice of disagreement. A notice of disagreement is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. 38 C.F.R. § 20.201(b). As the September 2015 claim does not expresses any disagreement with or contest the determination of the April 2015 rating decision, it may not reasonably be construed as a notice of disagreement to the April 2015 rating decision. The September 2015 claim was denied in a November 2015 rating decision, which the Veteran appealed in a December 2015 notice of disagreement. The December 2015 notice of disagreement specifically indicates disagreement with the November 2015 rating decision. As such, the Board finds that the April 2015 rating decision was not appealed and therefore became final. As such, the April 2015 rating decision is the prior final decision for this claim. Since the prior final decision, evidence of mild degenerative changes to the Veteran’s cervical spine has been associated with the record. See May 2015 Neurology Note, Puget-Sound VA Medical Center. The Board finds the evidence new as it was not previously of record at the time of the prior final decision. Nor is the evidence cumulative or redundant of any evidence already of record. As the evidence establishes a current disability, it also speaks to a previously unestablished fact and has a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disability. Hence, the low threshold for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for a cervical spine disability is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for a cervical spine (neck) disability is remanded. Having reopened the claim for service connection for a cervical spine disability, the Board finds that additional development is necessary prior to adjudicating the claim. Specifically, remand is necessary for an adequate opinion addressing the etiology of the Veteran’s cervical spine disability. The Board acknowledges that service connection may be granted for degenerative arthritis disabilities on a presumptive basis under 38 C.F.R. § 3.309(a). However, the record does not support service connection on a presumptive basis as the Veteran was not diagnosed with a chronic neck disability during service or within a year of discharge from service. The Veteran was discharged from service in 1984, and there is no indication of degenerative changes to her neck prior to the 2015 records from Puget-Sound. Nor is there sufficient evidence of record of continuous symptoms of a chronic neck disability since service. However, as the appeal is being remanded, the Board apprises the Veteran and her representative that additional evidence may be submitted regarding any continuity of her symptoms of a neck disability since her discharge from service. While the record does not currently support service connection for a cervical spine disability on a presumptive basis, the claim must also be considered on a direct basis. In this regard, the Board notes that the Veteran’s service treatment records indicate that she pulled a muscle in her neck due to an August 1983 fall. However, in April 2015, the Veteran underwent a VA examination for neck conditions, and the VA examiner provided a negative nexus opinion. In the Disability Benefits Questionnaire (DBQ), the VA examiner noted the Veteran’s August 1983 fall in service. The examiner indicated that the Veteran underwent ultrasound and neck brace treatment for a while and returned to full unrestricted duty with no further neck pain. The examiner also indicated that the Veteran developed neck pain again in about 1995. The examiner opined that there was no diagnosis and no chronic diagnosis for a neck disability. However, the examiner also noted a VA chiropractic note stating that cervical sprain was diagnosed in March 2000, history of rear-end collision. The VA examiner then opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the only medical note of neck problems in service shows a normal cervical spine on x-ray in May 1983. The examiner reasoned that the Veteran had a subsequent neck injury in 2000 after separation from service. The examiner further reasoned that there are no documented neck symptoms from the Veteran’s 1984 separation from service and the diagnosis of a neck injury in an automobile accident in 2000. However, the Board does not find the opinion adequate. That the Veteran was involved in a post-service car accident suggests a potential intercurrent cause. However, as the Board may not make medical determinations, an adequate medical opinion is necessary addressing whether the car accident is an intercurrent cause of the Veteran’s current neck disability. While the April 2015 VA examiner reasoned that the Veteran’s neck injury is due to the 2000 automobile accident, the Board notes that the diagnosis linked to the car accident is a cervical sprain. The record supports that the Veteran currently has degenerative changes of the cervical spine. As such, an opinion is now necessary addressing this diagnosis. Additionally, the VA examiner’s opinion that the Veteran’s neck condition is linked to the car accident is conclusory as the VA examiner did not explain why the injury is linked to the automobile accident. The rationale provided as to why the Veteran’s neck disability is not related to her service is also inadequate as it is improperly predicated on a lack of documentation in the medical record. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Nor did the examiner address the Veteran’s reports of neck pain in 1995 as noted in the DBQ. Furthermore, since the April 2015 VA examination, the Veteran has made lay statements as to how her current neck disability is related to service. The April 2015 VA examiner did address the Veteran’s reports of a neck injury in service. However, in the December 2015 notice of disagreement, the Veteran also stated that headaches and restrictions of movements are indicative of a continued problem with her neck. She stated that over the counter medications were used to control the pain, and thus no further medical intervention was sought. These statements are relevant to the Veteran’s claim and must be addressed on appeal. The matter is REMANDED for the following action: 1. Contact the Veteran and have her identify any additional records pertaining to her current cervical spine disability. Obtain any outstanding VA records. For any identified private records, seek authorization from the Veteran to obtain these records. Then, make the appropriate attempts to obtain these records. If unable to obtain these records, inform the Veteran and her representative and request that the Veteran provide the records. 2. Then, schedule the Veteran for a new VA examination with an appropriate examiner to assess the nature and etiology of her current cervical spine disability. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion provided must be accompanied by a rationale. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current cervical spine degenerative changes were caused by, incurred in or are otherwise related to her active service. Importantly, the examiner must consider the Veteran’s in-service complaints of neck pain and her lay statements that she injured her neck in service during physical training, for which she used over the counter medication. The examiner must also address the reports of neck pain in 1995 prior to the 2000 car accident. In discussing the 2000 car accident, the examiner is asked to distinguish between the neck sprain diagnosed at that time and the current diagnosis for degenerative changes or to explain why it is not possible to distinguish the diagnoses. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel