Citation Nr: 21063808 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-23 380 DATE: October 18, 2021 ORDER As new and material evidence has been received, the claim for service connection for cervical spine disability is reopened. REMANDED Entitlement to service connection for cervical spine disability is remanded. FINDINGS OF FACT 1. In an unappealed November 2013 rating decision, the RO denied service connection for cervical spine disability. 2. Evidence received since the November 2013 denial relates to an unestablished fact necessary to substantiate the claim for a cervical spine disability. CONCLUSIONS OF LAW 1. The November 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening of the claim for service connection for cervical spine disability have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1986 to March 2006. This matter is on appeal before the Board of Veterans Appeals (Board) from a June 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, a Board hearing was held before the undersigned; a transcript of the hearing is of record. Petition to reopen the claim for service connection for cervical spine disability. In a November 2013 rating decision, the RO, in pertinent part, denied service connection for cervical spine disability. The basis for the denial was that there was no chronic cervical spine disability shown in service and that a nexus between any current cervical spine disability and service was not shown. The Veteran did not submit a valid notice of disagreement with this decision. Moreover, no new and material evidence was received by the VA within one year of the decision. As such, the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 13676 (Fed. Cir. 2011). In February 2015, the Veteran filed a petition to reopen the service connection claim. Evidence received since the November 2013 rating decision includes a September 2021 letter expressing a VA chiropractor's professional opinion that the Veteran's current cervical spine disability was more likely than not the direct result of events that occurred during his military service. This evidence is new as it was not of record at the time of the November 2013 decision. It is also material as it relates to an unestablished fact necessary to substantiate the claim (the presence of a nexus between current disability and military service) and under the controlling low evidentiary standard, raises a reasonable possibility of substantiating the claim. Accordingly, the evidence is new and material and the claim for service connection for cervical spine disability may be reopened. 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110. REASONS FOR REMAND Entitlement to service connection for cervical spine disability is remanded. The Veteran's service treatment records show that in February 1991 while participating in biathlon training, he fell while skiing. He was noted to have pain in the right shoulder and mid-clavicle and an X-ray showed that he suffered a fractured right clavicle. At a subsequent medical visit in May 1991, the history of the clavicle fracture was noted, and it was also noted that the Veteran had a numb spot on the right shoulder. Also, at an April 1992 medical visit, the Veteran complained of a sore neck for the past two weeks. He indicated that his right arm would get numb and that he would experience a tingling feeling down his right arm. Additionally, at the July 2021 Board hearing, the Veteran testified that the numbness he experienced in the right upper extremity since soon after the skiing accident had progressed over the years and that he had been seeing his chiropractor for years for the problem. Further, in the September 2021 letter, the VA chiropractor noted that he had diagnosed the Veteran with spondylosis of the cervical spine and that he had reviewed the service treatment records and medical records concerning the Veteran's pain in his neck and upper extremity pain and disability. The chiropractor then indicated that it was his professional opinion that the Veteran's current cervical spine disability was more likely than not the direct result of the events that occurred during his military service. Given the VA chiropractor's opinion, the evidence of some level of neck area problems during service and the Veteran's testimony, the Board finds that a VA examination with accompanying medical opinion is necessary prior to final adjudication of this claim. The Board notes that the Veteran was earlier provided a VA examination in November 2013 but in light of the newer chiropractic opinion and given that the November 2013 VA examiner did not appear to take into account the Veteran's clavicle fracture (which was specifically considered and referenced by the September 2021 VA chiropractor), the Board finds that an updated VA medical opinion is necessary. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from 2006 to the present pertaining to chiropractic treatment provided by Dr. Brown and Dr. Capuana at the Syracuse VAMC. 2. Thereafter, obtain a VA opinion by an appropriate examiner for the Veteran's claimed cervical spine disability. The Veteran should be scheduled for examination if determined necessary. The examiner must review the claims file in conjunction with the examination. This review should include the service treatment records, post-service VA treatment records, post-service non-VA treatment records, the November 2013 VA examination with accompanying medical opinion, the July 2021 VA chiropractic opinion; and any other information of record deemed pertinent. The examiner should then provide an opinion as to whether the Veteran's current cervical spine disability is at least as likely as not (i.e. a 50 percent chance or greater) related to his military service, to include his 1991 clavicular fracture and neck pathology suffered therein. (Continued on the next page) The examiner should explain the rationale for the opinion provided. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.