Citation Nr: 1807869 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-23 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for residuals of a neck disability; and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty in the Air Force from June 1986 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's electronic claims folder. In June 2017, the Veteran submitted additional medical and lay evidence, with a waiver of RO consideration. Therefore, the Board may properly consider such newly received evidence. The issue of entitlement to service connection for residuals of a neck injury is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The claim for service connection for a neck disability was denied in December 1998 and August 2000 unappealed decisions; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to decide the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a neck disability. Therefore, no further development is required with respect to this aspect of the Veteran's appeal as any deficiency has been rendered moot. II. Application to Reopen Based on New and Material Evidence The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low evidentiary threshold has been 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 consider whether the evidence could reasonably substantiate the claim, were the claim to be reopened. Shade, 24 Vet. App. at 118. In a December 1998 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a neck disability due to no complaints of neck pain after an in-service ski accident and evidence that the neck disability may be related to a post-service automobile accident. Although the Veteran filed a Notice of Disagreement in October 1999, he never perfected his appealed after a Statement of the Case was issued in August 2000 (a rating decision denying the claim was also issued in August 2000). Therefore, the December 1998 and August 2000 rating decisions are final. Since the last final decision, the Veteran submitted private treatment records which purport to relate the Veteran's neck disability to service. As this evidence had not been previously reviewed by agency makers, the Board finds that it is new evidence under 38 C.F.R. § 3.156(a). The January 2013 Disability Benefits Questionnaire (DBQ) and June 2017 private doctor letter tend to show a nexus between the Veteran's disability and service, which was the basis for the previous denial. It is also material because it raises a reasonable possibility of substantiating the claim when considered with the old evidence. See Shade. Accordingly, the Veteran's claim for service connection for a neck disability is reopened. ORDER New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for a neck disability having been received, to this extent the claim to reopen is granted. REMAND There are several private medical documents of record which attempt to bridge a connection between the Veteran's in-service ski accident and his current neck disability. However, none of them provide adequate opinions on which the Board may rely to grant the Veteran's claim. Therefore, having reopened the claim under Shade, the Board finds that the Veteran is entitled to a VA examination. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the above facts, the Board finds that a remand is necessary to provide the Veteran a VA examination to determine whether the Veteran's neck disability is related to his active service or any service-connected disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination in regard to his claim for a neck disability. The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinions. The examiner is asked to offer opinions as to the following questions: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed neck disability began in or is related to active service. (b) Whether it is at least as likely as not that the Veteran's neck disability was caused by his service-connected right shoulder disability. (c) Whether it is at least as likely as not that the Veteran's neck disability is aggravated (i.e., worsened) by his service-connected right shoulder disability. If aggravation is found, the examiner should address the following medical issues: i. the baseline manifestations of the Veteran's neck disability found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected right shoulder disability. The examiner's attention is directed to, but not limited to the following (please address): (a) Veteran's competent lay statements that he injured his neck during active service during a ski accident; (b) January 1999 letter from Dr. N.O. of Rehabilitation Associates of Colorado, P.C. where he opined that the Veteran's ongoing cervical pain was service connected; (c) July 2000 VA examination report which opines that the Veteran's current neck problems are more compatible with the 1998 motor vehicle accident than the in-service ski accident; (d) December 2012 claim that cervical disability is secondary to service-connected right shoulder disability; (e) January 2013 DBQ completed by Dr. K.J. where the Veteran reported has had neck pain since 1995 ski accident; and (f) June 2017 treatment note from Dr. C.W. which states, "It is difficult to definitively say whether his neck pain is due to the skiing accident versus the motor vehicle accident; however, the patient claims he has had neck pain since 1994 after a skiing accident so he already had neck pain before he was involved in a car accident." The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer 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. See Jones v. Shinseki, 23 Vet. App. 382 (2011). A complete rationale for any opinions reached is requested. 2. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs