Citation Nr: 18109294 Decision Date: 06/07/18 Archive Date: 06/07/18 DOCKET NO. 12-29 875 DATE: June 7, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disability, and to this extent only the appeal is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to an increased rating right hip degenerative joint disease (DJD) and bursitis based on limitation of flexion (right hip disability), rated as 10 percent disabling prior to February 25, 2016, and 20 percent disabling thereafter is remanded. Entitlement to a rating in excess of 10 percent for left wrist fracture with DJD (left wrist disability) is remanded. FINDING OF FACT The Veteran’s claim for service connection for a neck disability was last denied in a December 2008 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. CONCLUSION OF LAW The criteria to reopen the claim for service connection for a neck disability have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1972 to July 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of his testimony is of record. These matters were previously before the Board in May 2016, when they were remanded for additional development. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability 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 (2017). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2017). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO last denied the Veteran’s claim of service connection for a neck disability in a December 2008 rating decision, finding that the Veteran did not have a diagnosed neck disability that was related to active service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2008). The evidence received since the December 2008 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2017). For example, a January 8, 2016 VA treatment record reflects a diagnosis of DJD of the cervical spine. Additionally, at his February 2016 hearing the Veteran provided additional details regarding his claimed in-service neck injury. This new evidence addresses the reason for the previous denial; that is, a current disability and an in-service event, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to an increased rating right hip disability based on limitation of flexion, rated as 10 percent disabling prior to February 25, 2016, and 20 percent disabling thereafter is remanded. 4. Entitlement to a rating in excess of 10 percent for left wrist disability is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In pertient part, the May 2016 remand directed that the Social Security Administration (SSA) records pertinent to the Veteran’s SSA disability benefits claim be associated with the claims folder. While the records were requested in July 2016 and August 2016, neither SSA records nor a negative response has been associated with the claims folder. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The evidence indicates there may be outstanding relevant VA treatment records. A VA treatment record from January 8, 2016 indicates that the Veteran was to return for follow up appointment in January 2017. VA treatment records subsequent January 19, 2016 have not been associated with the claims file. Additionally, a January 19, 2016 VA treatment record indicates that an unidentified fee basis emergency room record from December 28, 2015 had been scanned into VistA Imaging. It does not appear that the aforementioned records have been associated with the claims folder. A remand to obtain the records is required. Having reopened the Veteran’s neck claim, the Board finds that a VA examination is warranted. The claims folder notes that the Veteran is diagnosed with DJD of the cervical spine and an April 17, 1990 service treatment record notes that the Veteran was treated for a “crick” in his neck. Accordingly, a VA examination and opinion are needed. Concerning the Veteran’s right hip claim, there appear to be outstanding Workman’s Compensation records. A February 8, 2011 treatment record from Grady Orthopedics notes that the Veteran had a “Worker’s Compensation issue relative to his right lower extremity.” As the Veteran’s Workman’s Compensation claim records could be relevant to his right hip claim, on remand reasonable efforts must be made to obtain any pertinent Workers’ Compensation records. Regarding the Veteran’s right hip claim, the Board finds that additional VA examination is warranted. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records dated since January 19, 2016, as well as the VistA Imaging record referenced in the January 19, 2016 VA treatment record. If any requested records are unavailable, the Veteran should be notified of such. 2. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. If the records cannot be obtained, the claims file should be annotated to reflect such and the Veteran notified of such. 3. After receiving any necessary contact information and authorization from the Veteran, request copies of the Veteran’s Workman’s Compensation records. If the requested records are not available, the Veteran should be notified of such. 4. After records development is completed, the Veteran should be afforded a VA cervical spine examination to determine the nature of any neck disability and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results 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 disability of the cervical spine arose during service or is otherwise related to service, to include the Veteran’s October 18, 1984 and April 17, 1990 reports of neck pain. A rationale should be provided for the conclusions expressed. 5. Schedule the Veteran for a VA hip examination to determine the current severity of his right hip disability. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s right hip disability should be reported. The examiner should also address the frequency, duration, and functional loss during periods of flare-ups. The examiner should describe the additional loss, in degrees, if possible. If the requested retrospective opinion regarding additional loss in degrees of motion cannot be provided, the examiner should explain why. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson, Counsel