Citation Nr: 21075758 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-19 511 DATE: December 21, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of service connection for a cervical spine disability is granted. Entitlement to service connection for a cervical spine disability is granted. FINDINGS OF FACT 1. In a November 2014 rating decision, VA denied service connection for a cervical spine disability on the basis that the Veteran's cervical spine disability was not incurred in or otherwise caused by active service. The Veteran filed a timely notice of disagreement in May 2015 and VA issued a statement of the case (SOC) in September 2016. The Veteran did not file a timely substantive appeal; therefore, the November 2014 rating decision became final. Evidence received since the November 2014 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. 2. Resolving reasonable doubt in the Veteran's favor, his cervical spine disability is at least as likely as not related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for a cervical spine disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 2. The criteria for service connection for a cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to January 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision which, in pertinent part, denied entitlement to service connection for a cervical spine condition on the basis that new and material evidence had not been received. In December 2021, the Veteran testified before the undersigned at a Board virtual hearing. Reopening Claims Despite the RO's action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability before addressing the claim on its merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of service connection for a cervical spine disability. In a November 2014 rating decision, VA denied service connection for a cervical spine disability on the basis that the Veteran's cervical spine disability was not incurred in or otherwise caused by active service. The Veteran filed a timely notice of disagreement in May 2015 and VA issued a statement of the case (SOC) in September 2016. The Veteran did not file a timely substantive appeal; therefore, the November 2014 rating decision became final. In November 2017, the Veteran attempted to reopen his claim of service connection for a cervical spine disability. Evidence received since the last final November 2014 rating decision includes VA treatment records, private treatment records and nexus opinions, veteran lay statements, and a VA examination. In letters dated in September 2017, September 2018, and September 2019, the Veteran's treating VA and private clinicians opined that the Veteran's cervical spine disability was more likely than not related to his service. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final November 2014 rating decision. Specifically, nexus statements from the Veteran's treating clinicians reflect that the Veteran's cervical spine disability was incurred in or is otherwise related to service. Thus, new evidence submitted since the RO's November 2014 rating decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., a nexus) necessary to substantiate the claim. Therefore, new and material evidence has been received since the RO's November 2014 rating decision and reopening the claim of service connection for a cervical spine disability is warranted. The Veteran's petition is granted only to this extent. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 2. Entitlement to service connection for a cervical spine disability. The Veteran contends that service connection is warranted for a cervical spine disability. The Board concludes that the Veteran has a current disability that began during or is otherwise related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA and private treatment records show the Veteran has a current diagnosis of degenerative disc disease and degenerative vertebral change of the cervical spine with mild central stenosis of C3-4 and C6-7 and moderate to severe foraminal narrowing at C6-7. During service, the Veteran sought treatment twice for right shoulder and neck pain, but the Veteran was not diagnosed with a cervical spine disability. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a May 2019 VA medical opinion. After examining the Veteran and reviewing the record, the examiner noted that while the Veteran sought treatment for a shoulder condition during service, there was no evidence of a specific cervical spine condition during service or after service until 2007. The examiner noted the Veteran was diagnosed with cervical stenosis, disc degeneration, and possible nerve root compression. The examiner explained that these are typically age-related conditions and not related to specific or cumulative traumas. Additionally, the clinical history and findings were consistent with a gradual, progressive, degenerative process of the neck. Thus, the examiner opined that it was less likely than not that the Veteran's cervical spine disability was incurred in or otherwise caused by service. The evidence in favor of the claim includes a number of positive nexus opinions. In August 2014 and August 2015 letters, the Veteran's treating private clinician, P.E., indicated that he had reviewed the Veteran's medical records and a history of injuries the Veteran suffered during service. The clinician noted that the Veteran continues to experience chronic neck, shoulder, and arm pain. After reviewing the record and examining the Veteran, the clinician opined that the Veteran's cervical spine disability was more likely than not related to service, to include bending, reaching, and twisting his body for long periods as a welder while on active duty. In September 2017 and September 2018 letters, the Veteran's treating VA clinician, S.B., opined that the Veteran's chronic neck pain and cervicalgia were more likely than not related to his service, which included eleven years as a welder. In a September 2019 letter, the Veteran's treating private clinician of over ten years, C.Q., noted the Veteran's cervical spine history and explained that his symptoms were progressive but most likely initiated during service between 1975 and 1997. The clinician noted that the Veteran was a welder, pipefitter, and structural fabricator, which involved unusual and anatomically straining positions, especially when working on ships. The clinician also noted the in-service incident where the Veteran fell off of a ladder. After reviewing the Veteran's military records, past work history, medical history, and injuries, the clinician opined that it was more likely than not that the Veteran's cervical spine disability was a result of his previous injuries and work duties while in service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current cervical spine disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a cervical spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.