Citation Nr: 18100563 Decision Date: 04/17/18 Archive Date: 04/17/18 DOCKET NO. 14-16 104 DATE: April 17, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER New and material evidence has been received to reopen the claim for service connection for a cervical spine disorder, and to that extent, the claim is granted. FINDING OF FACT 1. A March 1987 rating decision denied the Veteran’s claim for service connection for cervical strain; the Veteran did not appeal or submit new and material evidence within the appeal period, and the March 1987 rating decision is final. 2. Evidence received since the March 1987 rating decision is new and relates to unestablished facts necessary to substantiate the claim for service connection for a cervical spine disorder. CONCLUSION OF LAW New and material evidence has been received, and the claim for service connection for cervical strain is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1984 to September 1986. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2016. A transcript of the hearing is of record. Whether new and material evidence has been received to reopen the claim for service connection for a cervical spine disorder. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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). The threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s initial claim for service connection for a cervical spine disorder was denied in a March 1987 rating decision because the cervical sprain in service was acute and transitory with no residual disability found on VA examination. The Veteran did not appeal that rating decision, nor did he submit new and material evidence within one year of the decision; therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). In an October 2010 rating decision, the RO reopened the Veteran’s claim but denied the service connection claim on the merits. Regardless of the RO’s actions, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened before addressing the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board finds that the evidence received since the March 1987 rating decision includes evidence that is both new and material to the claim. In this regard, a February 2010 VA treatment record noted that radiographic imaging revealed degenerative changes in the cervical spine. The December 2013 VA examination noted a diagnosis of degenerative arthritis of the cervical spine. The new evidence relates to an unestablished fact necessary to substantiate the claim; specifically, the presence of a chronic cervical spine disability. Accordingly, the new and material evidence has been received, and the claim is reopened. REMANDED ISSUE The issue of entitlement to service connection for a cervical spine disorder on the merits is remanded for additional development. At the December 2016 Board hearing, the Veteran stated that shortly after his 1986 discharge from service, he received medical treatment at a VA facility, specifically the Southern Arizona VA Healthcare System. To date, such VA treatment records have not been associated with the claims file. Such should be requested on remand. Updated VA treatment records should also be requested. Furthermore, the December 2013 VA examiner provided an opinion regarding whether the Veteran’s cervical spine disorder was related to his May 1986 motor vehicle accident. The examiner opined it was less likely than not that the cervical spine condition was related to service, noting that the Veteran’s cervical spine disorder was likely related to heavy work exposure and heavy lifting for twenty years as a heavy equipment loader operator and long distance truck driver. However, the Veteran testified at the December 2016 Board hearing that he worked as a heavy equipment loader operator and long distance truck driver off and on for a total of three and one-half to four years, not twenty continuous years. Accordingly, an additional examination and addendum opinion is warranted. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his neck disability. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. If requested records are unavailable, the Veteran should be notified of such. 2. Attempt to obtain any outstanding VA treatment records dating from Southern Arizona VA Healthcare System for the period from 1986 to 1997, and outstanding treatment records from the Phoenix VA Healthcare System, and Northern Arizona VA Health Care System. If requested records are unavailable, the Veteran should be notified of such. After records development is completed, schedule the Veteran for a VA neck examination to determine whether his current cervical spine disability is related to service. The claims file must be reviewed in conjunction with the examination. All indicated tests should be conducted and the results of reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disorder of the cervical spine arose during service or is otherwise related to service, to include the cervical sprain and motor vehicle accident in service. In rendering the opinion, the examiner should explain why the current cervical spine disability is/is not a delayed post-traumatic residual of the accident. A rationale is requested for all opinions expressed. 3. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order.. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs