Citation Nr: 20008014 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-08 342 DATE: January 30, 2020 ORDER New and material evidence has not been received, and the claim for service connection for a cervical spine disorder is not reopened; the appeal is denied. FINDINGS OF FACT 1. The Veteran did not appeal a January 2015 rating decision that denied her claim for service connection for a cervical spine disorder. 2. The evidence associated with the claims file following the January 2015 rating decision is not new and material. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied the Veteran’s claim for service connection for a cervical spine disorder is final. 38 U.S.C. § 7104 (2012), 38 C.F.R. §§ 3.160 (d), 20.1100 (2018). 2. The evidence received subsequent to the January 2015 rating decision is not new and material evidence, and the claim for service connection for a cervical spine disorder is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to January 1993, and from February 1998 to March 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). After finding the evidence submitted was not new and material, the RO denied the Veteran’s petition to reopen a previously denied claim for service connection for a cervical spine disorder. With regard to reopening previously denied claims, the Board notes that regardless of what the RO has done, the Board must decide on its own whether new and material evidence has been received, prior to considering the merits of the underlying issue. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381(Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). However, with respect to the claim to reopen, VA does not have a duty to provide a medical examination or obtain a medical opinion until the claim has been reopened. As this claim has not been reopened, VA had no duty to provide a medical examination or obtain an opinion in this case. The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA’s duty to assist in the development of the claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disorder. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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. 38 C.F.R. § 3.156(a). The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, a January 2015 rating decision most recently denied the Veteran’s claim for service connection for a cervical spine disorder. At that time, the record contained the Veteran’s service treatment records and post-service VA and private treatment records. The evidence of record at the time of the January 2015 rating decision showed that the Veteran’s claimed cervical spine disorder was not related to her service, as no nexus to service had been shown. The Veteran was notified of the denial, but did not perfect an appeal, and the January 2015 rating decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. After the January 2015 rating decision became final, in January 2018, the Veteran filed another petition to reopen the claim for service connection for a cervical spine disorder. The Board finds that new and material evidence sufficient to warrant reopening the Veteran’s service connection claim has not been submitted. Since the January 2015 denial of the Veteran’s claim for service connection for a cervical spine disorder, additional VA and private medical records have been associated with the Veteran’s claims file. This new evidence consists of VA treatment records from Little Rock VAMC and Central Arkansas HCS; vocational rehabilitation records; and additional lay statements from the Veteran. In examining these records, the Board finds that there is no evidence establishing a link between the Veteran’s claimed cervical spine disorder and her military service. Here, none of the newly submitted records establish a nexus to her military service. Moreover, the medical records and lay statements are essentially cumulative of evidence submitted prior to the January 2015 denial of the claim. While new, these records and statements are not material in that they do not demonstrate a nexus between the Veteran’s claimed cervical spine disorder and her military service. Rather, the evidence merely reflects a current diagnosis of a cervical spine disorder, a diagnosis which was already acknowledged and considered in the prior final RO decision. The Veteran submitted additional statements, but these simply reiterate her already presented arguments. As such, the Board finds that this new evidence is not material, in that it does not relate to an unestablished fact necessary to substantiate the claim. The new evidence, like the old evidence, fails to establish a nexus between the Veteran’s claimed cervical spine disorder and service. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board has reviewed the pages of medical evidence and statements submitted by the Veteran in support of this claim. Her assertions are cumulative of the assertions and lay statements previously considered in the earlier final RO decision addressing the claim for service connection for a cervical spine disorder. The submissions, while new, are simply not material. The evidence received since January 2015 is not new and material, and the requirements have not been met to reopen the claim for service connection. The additional evidence is redundant in nature and does not raise a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for a cervical spine disorder is denied. See 38 C.F.R. § 3.156(a). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, Associate Counsel 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.