Citation Nr: 20007895 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-51 504 DATE: January 30, 2020 ORDER Entitlement to service connection for a cervical spine disorder is reopened and granted. FINDINGS OF FACT 1. Evidence received since the June 2011 rating decision that denied service connection for a neck disorder is new and material in that it was not previously considered and raises a reasonable possibility of substantiating the claim. 2. The Veteran’s cervical spine disorder is related to an in-service injury. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection for a neck disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1965 to February 1976 and October 1981 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a private medical opinion after the issuance of the most recent statement of the case. However, the Veteran also submitted a waiver of AOJ consideration of these records. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such newly received evidence. Claim to Reopen The Veteran’s neck disorder claim was denied in a June 2011 rating decision. As the Veteran did not appeal the denial, it became final. In a May 2016 rating decision, the Agency of Original Jurisdiction (AOJ) reopened the claim. Despite the determination reached by the AOJ with respect to the reopening of the Veteran’s claim, the Board must find new and material evidence to establish its jurisdiction to review the merits of previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, the United States Court of Veterans Appeals has clarified that the phrase raises a reasonable possibility of substantiating the claim is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The June 2011 rating decision denied service connection based on a finding that there is no medical evidence linking a current neck disorder with service. Evidence submitted since the Veteran’s request to reopen includes a June 2015 private treatment note indicating the Veteran’s neck disorder is due to an injury in service. The evidence is new in that it was not previously considered. It is also material insofar as it addresses whether the Veteran’s current neck disorder is related to service. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for a neck disorder is reopened. Service Connection The Veteran asserts that he has a cervical spine disorder due to a head injury in service. The Board concludes that the Veteran has a current neck disability that is related to an in-service head injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records (STRs) show the Veteran sustained a head injury in November 1972 when a nitrogen bottle fell from the truck and struck him in the head. He did not lose consciousness. A November 1979 cervical x-ray noted a normal cervical spine. In medical history reports dated in May 1986, March 1988, and June 1993, the Veteran denied swollen or painful joints and recurrent back pain. The associated medical examination reports were negative for abnormalities of the spine. Post-service, in a December 2002 private treatment note, the Veteran reported a 30-year history of neck pain, originally injured when a nitrogen bottle fell on him. A February 2007 note showed a diagnosis of cervicalgia. In a May 2007 private treatment note, the Veteran again reported the accident from a nitrogen tank dropping on his head. He stated that ever since then he has had occasional left neck pain when during his head to the right. Additional private treatment notes show continued treatment for neck pain. A February 2011 VA x-ray report shows the Veteran has a current diagnosis of degenerative joint disease of the cervical spine. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a February 2011 VA examination report which indicates the Veteran’s neck disorder is caused by aging and less likely than not caused by his head injury in service. The evidence in favor of the claim includes a June 2015 private treatment note in which the physician indicates the Veteran has chronic axial neck pain with acute right cervical radiculopathy. The examiner referred to an MRI that demonstrated autofusion at C5/6 and C6/7 which is likely related to an injury that the Veteran sustained in his 20s in the military with an impact to his head causing significant axial load to his cervical spine. Additionally, the Veteran submitted a November 2019 statement from his treating physician who stated that he reviewed the Veteran’s STRs and found his cervical spondylotic myelopathy is at least as likely as not caused by or a result of the Veteran’s military service. The physician noted that the Veteran’s initial injury may have resulted in early disc degeneration that accelerated normal spondylosis due to aging contributing to canal stenosis and cord compression. (Continued on the next page)   Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current neck disorder is related to injury sustained in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a neck disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.