Citation Nr: 21074631 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 20-03 537 DATE: December 15, 2021 ORDER New and material evidence has been presented to reopen the claim of entitlement to service connection for a cervical spine disorder. Entitlement to service connection for a cervical spine disorder is granted. FINDINGS OF FACT 1. A final August 2013 Agency of Original Jurisdiction (AOJ) decision denied entitlement to service connection for a cervical spine disorder on the basis of no nexus between a current disability and service. 2. The evidence received since the most recent prior denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disorder. 3. The Veteran's cervical spine disorder is etiologically related to an injury sustained during a period of ACDUTRA service. CONCLUSIONS OF LAW 1. Following the prior final denial in August 2013, new and material evidence has been presented to reopen the claim of entitlement to service connection for a cervical spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a cervical spine disorder have been met. 38 U.S.C. §§ 101(22)(D), 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to October 1970, with service in the U.S. Navy Reserves and U.S. Navy Reserve Officers' Training Corps (NROTC). 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a cervical spine disorder If a claim of entitlement to service connection is denied by an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In August 2013, the AOJ denied entitlement to service connection for a cervical spine disorder on the basis that there was no nexus to service. The relevant evidence of record at that time of the VA and private treatment records, military reserve records and some post-service treatment records. The AOJ determined service treatment records during the Veteran's active duty service were unavailable, and the AOJ did not obtain a VA examination. The Veteran did not appeal or submit new and material evidence within the one-year appeal period after notices of either decision were provided. Hence, those decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Relevant evidence received since the prior final denials includes a private medical opinion, Veteran statements and hearing testimony, and relevant lay statements. The Veteran has specifically submitted an "OMIAS" card reflecting that he underwent ejection seat movie, lecture and indoctrination "shot" in July 1961 and an April 2021 opinion linking a current cervical spine disability to the ejection seat event. This evidence relates to unestablished facts needed to establish service connection for these claims (i.e., the element of nexus). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim of service connection for a cervical spine disorder are met. 2. Entitlement to service connection for a cervical spine disorder Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders may be presumed where demonstrated to a compensable degree within one year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated "chronic disease" shown in service, including arthritis (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). A veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes the following: active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA; or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In pertinent part, the Veteran has submitted sufficient documentary proof that, in July 1961, he was a member of the Senior ROTC program who was performing a practice cruise pursuant to 10 U.S.C. § 2101 and, as such, is deemed to have been on ACDUTRA status. 38 U.S.C. § 101(22)(D). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). During the Veteran's August 2021 Board hearing, he testified that he injured his neck during ejection seat training in July 1961. At the time, he was participating in the NROTC. See also August 2021 and November 2012 Veteran Statement; October 2018 Lay Statement. The Board finds these statements to be credible and probative of the issue. The Board also notes that the evidence of record does indicate that the Veteran was participating in NROTC during the July 1961 injury. See July 1961 OMAIS Card. The Veteran has undergone surgeries for cervical stenosis and cervical disc replacement, and has a current diagnosis of multilevel cervical arthritis. See April 2021 Private Medical Records. The private physician who performed the surgeries and treated the Veteran determined the cervical spine disorder is consistent with the Veteran's reported 1961 ejection seat injury, further opining that the Veteran has no other risk factors. Finally, the private physician opined that the Veteran's cervical spine disorder is likely a direct result of his "service related injury" and is also consistent with ageing. Id.; May 2018 Private Medical Records. The Board notes that the Veteran submitted medical literature in August 2021 providing information on vertebral injuries sustained during aircrew ejections. The Veteran's service in July 1961 is considered ACTUDTRA. See 38 U.S.C. § 101(22)(D). Based on the April 2021 and May 2018 private physician's opinion, the Veteran's current spine disorder is likely due to the 1961 injury during a period of ACDUTRA. Because the Veteran's spine injury is likely due to an injury sustained during a period of ACDUTRA, service connection is warranted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.