Citation Nr: 21003507 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-05 583 DATE: January 21, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a neck condition is denied. REMANDED Entitlement to service connection for a right ankle condition is remanded. FINDINGS OF FACT 1. In an unappealed July 2013 rating decision, the RO denied a claim for entitlement to service connection for degenerative disc disease of the cervical spine (claimed as neck stiffness and pain). 2. Although new evidence has been submitted since the June 2013 rating decision that denied service connection for degenerative disc disease of the cervical spine, the new evidence does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2013 rating decision, which denied a claim for entitlement to service connection for degenerative disc disease of the cervical spine, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for degenerative disc disease of the cervical spine have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 to December 2005, July 2006 to November 2007, and from January 2010 to February 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and December 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Veteran’s representative was not present at the Board hearing; however, the Veteran stated on the record that he wished to proceed with the hearing. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a neck condition The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for degenerative disc disease of the cervical spine (claimed as neck stiffness and pain) was denied in a July 2013 rating decision on the basis that the Veteran’s neck condition neither occurred in nor was caused by his active military service. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. While new evidence in the form of correspondence from the Veteran’s VA treating physician were added to the record within one year of the July 2013 determination, the evidence only relates to the Veteran’s right ankle condition. Thus, the records are not material. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In addition, military personnel records were added to the record in June 2014. However, as these records are irrelevant to the issue on appeal, 38 C.F.R. § 3.156(c) is inapplicable. As such, the July 2013 rating decision did not remain pending and retained its finality. At the time of the July 2013 rating decision, the pertinent evidence of record included service treatment records, VA treatment records, and a VA examination and opinion. Since the most recent final denial in July 2013, VA treatment records and hearing testimony were added to the record. Pertinently, at the hearing, the Veteran provided testimony regarding the symptoms he experienced in service, additional details surrounding his in-service injury, and indicated that his current neck condition also is related to carrying weapon systems, body armor, and Kevlar in service. As this evidence was not before VA or considered in the prior denial, it is new. While this evidence is new, it does not relate to whether there is a nexus between the Veteran’s current neck condition and active service, the unestablished fact necessary to substantiate the claim. Specifically, the VA treatment records and most of the Veteran’s testimony concern his current diagnosis/condition and in-service injury. However, it has already been established that the Veteran has a current neck condition and suffered a neck injury in service. While the Veteran’s contention at the hearing that his current neck condition may be due to carrying weapon systems, body armor, and Kevlar in service, constitutes a new theory of causation, a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the sole basis for reopening the claim in the absence of new and material evidence. Boggs v. Peake, 520 F.3d 1330, 1336-1337 (Fed. Cir. 2008). In order to reopen the claim based on this new theory, evidence supporting the theory must be submitted. Accordingly, as none of the new evidence relates to whether a nexus exists between the Veteran’s current neck condition and in-service neck injury and no evidence was submitted to support the Veteran’s newly raised theory of causation, no material evidence within the meaning of 38 C.F.R. § 3.156(a) has been submitted. There is no doubt to be resolved; the request to reopen the claim of entitlement to service connection for a neck condition is denied. REASONS FOR REMAND Entitlement to service connection for a right ankle condition The Veteran seeks service connection for a right ankle condition. In November 2018, the Board remanded the Veteran’s claim in order to obtain a VA examination and opinion that addressed the nature and etiology of the Veteran’s claimed right ankle condition as well as to obtain any outstanding VA and private treatment records. However, the appeal was prematurely returned to the Board without these actions having been completed. Thus, the Board must remand the Veteran’s claim for the RO to complete the development and issue a Supplemental Statement of the Case (SSOC). See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA and private treatment records pertinent to the Veteran’s claim for a right ankle condition. 2. Thereafter, schedule a VA examination to determine the nature and etiology of any right ankle condition. The entire claims file should be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. Based on the examination and review of the record, the examiner should: a) Note all right ankle disabilities diagnosed during the appeal period (from July 2013). b) For each right ankle diagnosis, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the condition was incurred in service or is otherwise related to the Veteran’s service, to include wearing military boots and intense training/physical environment. The examiner must consider the Veteran’s statements regarding the onset of his ankle pain in 2010.   A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.