Citation Nr: 21063921 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-64 063 DATE: October 18, 2021 ORDER The appeal to reopen the claim of service connection for a cervical spine disability is denied. FINDINGS OF FACT 1. An unappealed August 2010 rating decision denied service connection for a neck disability on the basis that such disability was not shown to be caused by active service. 2. Evidence received since the August 2010 rating decision does not pertain to the matter of onset during or causation or aggravation of a cervical spine disability by service; does not pertain to unestablished facts necessary to substantiate the claim; and does not raise a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for a cervical spine disability may not be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for training in the U.S. Army National Guard from July 1980 to August 1980 and from February 1982 to April 1982 with additional periods of training from 1979 to 2006. See Service Record received May 23, 2017 and October 12, 2017. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision. In October 2020 a video conference hearing was held before the undersigned; a transcript is in the record. In May 2021 the matter was remanded for additional development. The appeal to reopen the claim of service connection for a cervical spine disability. An unappealed August 2010 rating decision, the RO denied service connection for a neck disability on the basis that the Veteran's neck disability was shown to be caused by a December 1996 workplace injury as a police officer, and not caused or aggravated by active-duty or Reserve service. Under the legacy appeal system, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may considered. 38 U.S.C. § 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "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. 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. 38 C.F.R. § 3.156 (a). The mere allegation of a new theory of entitlement to service connection is insufficient to reopen the previously denied claim. See Velez v. Shinseki, 23 Vet. App. 199 (2009). Actual submission of new and material evidence in support of that theory of entitlement is necessary. Id. The U.S. Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection for a neck disability was denied by a previous unappealed August 2010 rating decision on the basis that the Veteran's neck disability was not caused or aggravated by service. The Veteran did not express disagreement or submit new and material evidence within one year and that decision is final. Accordingly, new and material evidence to reopen the claim is required before the claim can be considered de novo. 38 U.S.C. §§ 7105, 5108. Considering the basis for the prior denial of the claim, for evidence to relate to an unestablished fact necessary to substantiate this claim and be new and material it would have to tend to show that the Veteran's cervical spine disability might be caused or aggravated by her service. Evidence previously of record included service treatment records (STRs), records indicating a work-related injury in December 1996 causing herniate cervical discs, and post-service treatment records. The records were silent for any cause or aggravation of the workplace injury to the cervical spine. Evidence received since the August 2010 rating decision includes lay and buddy statements, records from the Social Security Administration, testimony from the Veteran and current treatment records (including evidence of a motor vehicle accident in February 2013 and treatment referencing an on-the-job neck and back injury). In April 2013 correspondence the Veteran stated that while on duty traveling from Kingsbridge Armory to Camp Smith, the driver "tilted the van causing injuries." The Veteran stated she was taken to a hospital and treated. A June 2013 treatment record notes the Veteran was seen for evaluation for neck pain following a February 2013 MVA. She reported that she was a pedestrian and hit by a car. A July 2013 treatment record notes the Veteran was seen for reports of neck and back pain for many years after she was injured on the job as a police officer. In February 2017 correspondence the Veteran stated that she was involved in a bus accident in March 2004. The Veteran indicated her destination was Camp Smith for training, and that the driver lost control of the school bus and the bus flipped over resulting in injuries to her low back, neck and right knee. The Veteran stated that she was medevacked to the Jacobi hospital for treatment of injuries such as herniated discs in her neck. At a February 2017 RO Informal Conference, the Veteran stated that she was involved in an accident when riding in a school bus from Kingsbridge Armory to Camp Smith. In July 2017 buddy statement, alleged that in March 2014 (sic) the Veteran was involved in a bus accident while in the 145th Maintenance Company while being transported from the Bronx to Peekskill, New York for training. The email indicated that all soldiers were evacuated to safety. As the Veteran ended her National Guard service in 2006 and as all other evidence suggests that the accident was in 2004, the Board will find that this report also refers to the accident in 2004. At the October 2020 video conference hearing, the Veteran testified that she was involved in a bus accident in the early 1980s on her way to training while traveling from the Kingsbridge Armory to Camp Smith. As noted above, in May 2021, the Board sought to develop this claim prior to reopening. The Board sought obtain authorization to secure for the record clinical records of all evaluations and treatment the Veteran received following her reported March 2004 bus accident. In May 2021 correspondence, it was requested that the Veteran submit authorization to obtain such records. A response was not received. Evidence received since August 2010 includes lay and buddy statements, records from the Social Security Administration, testimony from the Veteran and current treatment records (including evidence of a motor vehicle accident in February 2013, and report of an on-the-job injury to the neck and back). Some evidence received is new as it was not in the record at the time of the August 2010 rating decision. The statements by the Veteran and the fellow solider regarding the occurrence of a bus accident during travel on inactive duty training is new and raises a new theory of entitlement that the Veteran's earlier workplace injury to her cervical spine was aggravated by additional injuries in the 2004 accident. This did trigger VA's duty to assist even though the claim was not reopened. The Board remanded the appeal in May 2021 to provide assistance and opportunity for the Veteran to obtain material evidence. So even if the new theory and reports of an accident did constitute new and material evidence, the unestablished fact necessary to substantiate the claim is that her neck disorder incurred off duty in 1996 was aggravated (worsened) because of trauma during a bus accident. Despite additional efforts by VA to assist the Veteran in obtaining any records to show additional injury and worsening of the existing neck disorder, no new evidence material to this unestablished fact have been submitted or obtained. Accordingly, the Board finds that new and material evidence relevant to the unestablished fact has not been received, and that the claim of service connection for a cervical spine disability may not be reopened. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.