Citation Nr: 21076060 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-23 547 DATE: December 22, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar myositis, L5-S1 bulging disc; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar myositis, L5-S1 bulging disc, is remanded. FINDING OF FACT 1. An October 2014 rating decision denied service connection for a cervical disability; the Veteran did not file a notice of disagreement as to the October 2014 rating decision, and new and material evidence was not received within the one-year appeal period following the issuance of the October 2014 rating decision. 2. New and material evidence has been received since the October 2014 rating decision to reopen the claim for service connection for a cervical spine disability. CONCLUSION OF LAW 1. The October 2014 rating decision denying the claim for a cervical disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a cervical spine disability, to include as secondary to service-connected lumbar myositis, L5-S1 bulging disc. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1996 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issues by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it is characterized by the Agency of Original Jurisdiction (AOJ), the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 or redundant of the evidence of record at the time of the last final decision 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 Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required at to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purposes of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans, 9 Vet. App. at 285. The Veteran's claim for service connection for a cervical spine disability was denied in an October 2014 rating decision on the basis that the evidence did show not that his condition was secondary to his service-connected lumbar myositis. The RO further determined that the evidence did not show that his condition began in service or was caused by some event or experience in service. The Veteran did not appeal the October 2014 rating decision rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b), (c). Accordingly, the October 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for a cervical spine disability. New evidence received since the last final denial in October 2014 includes updated VA treatment records, a February 2019 VA examination, and the Veteran's testimony at the April 2021 Board hearing. The Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, as new and material evidence has been received, the Board finds that the claim for service connection for a cervical spine disability is reopened. REASONS FOR REMAND Entitlement to service connection for cervical spine disability, to include as secondary to service-connected lumbar myositis, L5-S1 bulging disc, is remanded. During the April 2021 Board hearing, the Veteran testified that he had been receiving treatment for his cervical spine disability from a VA physiatrist, Dr. R-M for approximately five or six years. He stated that Dr. R-M had told him that his cervical spine disability is due to his service-connected lumbar spine disability. Although VA treatment records show that the Veteran was treated by Dr. R-M for his cervical spine disability, these records do not contain any opinions/statements made by Dr. R-M relating the Veteran's cervical spine disability to his service-connected lumbar spine disability. However, the most recent VA treatment records associated with the electronic claims file are dated October 2018. As VA treatment records since October 2018 may contain the nexus opinion provided by Dr. R-M that the Veteran referenced in the April 2021 Board hearing, remand is warranted to obtain all VA treatment records from October 2018 to the present. Moreover, VA treatment records dated January 2018 and September 2018 reflect that the Veteran was receiving private medical treatment for his cervical spine disability from his private physiatrist, Dr. R-O, and his private chiropractor, Dr. M.; however, these private treatment records have not been associated with the electronic claims file. See CAPRI, received October 2018. When VA is informed of any potentially relevant private treatment records, VA must seek to obtain the records prior to deciding the case or explain its failure to do so. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Therefore, this matter must also be remanded to obtain these missing records. Additionally, although the Veteran was afforded a VA examination in February 2019 to determine whether his cervical spine disability and his bilateral lower extremities neuropathy condition were proximately due to or the result of his service-connected lumbar myositis, L5-S1 bulging disc, the claims file did not include VA treatment records past the date of October 2018, nor treatment records from the Veteran's private physiatrist and his private chiropractor. Thus, the February 2019 examiner provided a medical opinion without all the available information concerning the Veteran's medical history. As such, the Board finds the opinion provided by the February 2019 examiner to be inadequate because it was based on incomplete information and incomplete claims file records. Moreover, the examiner failed to provide an opinion regarding whether the Veteran's service-connected lumbar myositis, L5-S1 bulging disc, aggravated his cervical spine disability. Accordingly, another medical opinion is required. The Board notes that the Veteran further asserted during the April 2021 Board hearing that his shoulders, arms, and hands have been compromised by his service-connected lumbar myositis, L5-S1 bulging disc; however, these issues are not before the Board. The Veteran is encouraged to file claims for these issues as secondary to his service-connected lumbar myositis, L5-S1 bulging disc, under 38 C.F.R. § 3.310. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, make all efforts to obtain all relevant private medical treatment records for the Veteran's cervical spine disability for the entire appellate period in accordance with the duties set forth in 38 C.F.R. § 3.159(c). Document all requests for information, as well as responses in the claims file. 3. After the above directives have been completed, obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's cervical spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner is asked to answer the following questions: (a.) Is the cervical spine disability at least as likely as not (50 percent or greater probability) proximately due to service-connected lumbar myositis, L5-S1 bulging disc? (b.) Is the cervical spine disability at least as likely as not (50 percent or greater probability) aggravated, i.e., worsened beyond its natural progression, by service-connected lumbar myositis, L5-S1 bulging disc? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, Associate 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.