Citation Nr: 21067532 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 10-47 302A DATE: November 4, 2021 ORDER New and material evidence having been submitted, the previously denied claim of service connection for a cervical spine disability is reopened. Service connection for a cervical spine disability is granted. FINDINGS OF FACT 1. In January 2014, the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim for service connection for a cervical spine disability; the Veteran did not perfect an appeal during the requisite time period. 2. Some of the evidence received since the January 2014 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for a cervical spine disability. 3. The positive and negative evidence addressing whether the Veteran's cervical spine disability is proximately due to a service-connected disability is at least in approximate balance. CONCLUSIONS OF LAW 1. The January 2014 rating decision is final; new and material evidence having been received, the criteria for reopening a claim of entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156, 20.1103. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1996 to September 1996 and from June 2004 to August 2005. This matter is before the Board following his appeal of a May 2017 rating decision. This claim was most recently subject to a June 2021 United States Court of Appeals for Veterans Claims Order granting the parties' Joint Motion for Partial Remand. The claim has since been returned to the Board for further review. Claims for increased ratings for the Veteran's service-connected right hip disability were also previously before the Board. However, in July 2021, a Supplemental Statement of the Case (SSOC) addressing those claims was issued. The Veteran, through his attorney, subsequently sought to remove those claims from the legacy system and proceed with higher level review in the modernized system via VA Form 20-0996. VA acknowledged this request in an August 27, 2021 letter, noting that the Veteran's legacy appeal with respect to those issues was, therefore, discontinued. Per 38 C.F.R. § 3.2400(c)(2), a claimant can opt into the modernized system following issuance of an SOC/SSOC in a legacy appeal. Therefore, the claims for increased ratings for the Veteran's right hip disability are no longer before the Board in the legacy system and will not be discussed further. New and Material Evidence - Cervical Spine Disability In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim, which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering VA's duty to assist. Id. at 118. The RO previously considered and denied the claim for a cervical spine disability in a January 2014 rating decision. The claim was denied, in pertinent part, because there was no evidence of any event, disease, or injury that occurred during service, and because there was no evidence that the injury manifested within one year of the Veteran's separation from service. The Veteran subsequently filed a Notice of Disagreement with the January 2014 decision, and the denial was continued in an October 2015 SOC. However, the Veteran did not file a substantive appeal. Therefore, the January 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Evidence received since the January 2014 decision includes additional medical treatment records for the cervical spine as well as a positive private medical opinion. The Board finds that the private opinion is new, as it was not previously submitted to VA, and material, as it relates to an unestablished fact necessary to substantiate the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the claim for service connection for a cervical spine disability is reopened. Service Connection - Cervical Spine Disability The Veteran is seeking service connection for a cervical spine disability, which he has asserted is related to his service-connected low back disability. Following review of the record, the Board finds that service connection for a cervical spine disability is warranted. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The evidence of record confirms that the Veteran has a current cervical spine disability; namely, degenerative changes of the cervical spine. The remaining question, then, is whether that condition is related to service or a service-connected disability. Two competing medical opinions are of record. Specifically, in April 2017, a VA examiner determined that the Veteran's cervical spine disability was less likely than not proximately due to or caused by his service-connected low back disability. In support of that opinion, the examiner discussed various common causes of spinal degenerative changes, including age, trauma, genetic predisposition, and lifestyle factors, and stated that the neck and back were different anatomical sites. The examiner stated that any incident or diagnosis that affected one of those sites was independent from the other. The examiner did not address whether a service-connected disability may have aggravated the Veteran's cervical spine disability. The second medical opinion of record is dated November 2019 and was issued by an individual who, while apparently not actively practicing medicine at present, has submitted a curriculum vitae demonstrating medical knowledge beyond that of a lay person, to include a prior medical doctor degree obtained in Venezuela and work as a full-time medical and nursing school professor. That reviewer noted her disagreement with the findings of the 2017 VA examiner. She opined that the Veteran's cervical spine condition was at least as likely as not secondary to his service-connected back disability, because, although the cervical and lumbar portions of the spine are separate segments, they relate through the major spinal column support system of anterior and posterior longitudinal ligaments. The reviewer explained that the Veteran's lumbar condition more likely than not affected the ligaments in that portion of the spine, and that such impairment more likely than not transmitted up to his cervical spine, causing symptoms that, over time, accelerated the degenerative changes in that segment. In addition, the reviewer noted the Veteran's use of a cane for ambulation due to his lumbar and right hip conditions and explained that regular use of such a device more likely than not negatively impacted the stability of his entire spinal column as a result of abnormal postures of the whole body when standing and walking. She explained that abnormal postures cause elongation of the cervical capsular ligaments, which puts the cervical spine more at risk for further degenerative changes and instability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary is required to give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, there are positive and negative medical opinions of record, as described above. Both reviewers demonstrated familiarity with the Veteran's claims file but reached opposite opinions regarding a connection between the Veteran's cervical spine condition and a service-connected disability. Both provided rationales for their conclusions, although the VA examiner did not address the question of aggravation. In any event, the Board finds that the positive opinion now of record brings the evidence for and against the Veteran's claim into approximate balance. As a result, service connection for a cervical spine disability is warranted, and the claim is granted. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.