Citation Nr: 21005602 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-33 243 DATE: February 2, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disorder. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACTS 1. In an April 2013 rating decision, the RO denied service connection for cervical spine disorder. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 2. In a July 2014 rating decision, the RO denied service connection for cervical spine disorder. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 3. Evidence received since the July 2014 rating, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the underlying claims of entitlement to service connection for right ear hearing loss. CONCLUSION OF LAW The July 2014 rating decision denying service connection for cervical spine disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to June 1989 and November 1990 to May 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In October 2020 the Veteran presented testimony via a virtual hearing before the undersigned Veterans Law Judge. At the October 2020 Board Hearing the Veteran and his representative waived RO consideration of the additional VA treatment records added to the record. 1. Claim to Reopen In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 why 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 the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In an April 2013 rating decision, the RO denied service connection for cervical spine disorder because there was no current diagnosed disability. The Veteran submitted new and material evidence within one year. In a July 2014 rating decision, the RO denied service connection for a cervical spine disorder because the evidence did not show the condition was incurred in or aggravated by military service. Despite filing a new claim in June 2015, rhe Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the July 2014 rating decision included the following: 1) service treatment records (STRs); 2) private treatment records; 3) lay statement indicating treatment for neck pain. A June 2011 private treatment record noted complaints of and a diagnosis of neck pain. An August 2013 private treatment record showed a diagnosis of chronic neck pain – possible cranial sacral. Evidence of record submitted after the July 2014 rating decision included the following: 1) private treatment records; 2) VA treatment records; 3) a December 2015 VA examination; and 4) lay statements. In the Veteran’s lay statements, he provided additional evidence of in-service injuries due to his military occupational specialty. The Board finds that new and material evidence has been presented. The evidence including private treatments records are new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a current disability and nexus. See 38 C.F.R. § 3.303 (a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156 (a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder is remanded. The Board finds that remand is required for an addendum VA opinion, or if deemed necessary, a new VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Where the Veteran has provided competent and credible lay testimony, an examiner cannot ignore that lay evidence. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Veteran received a VA examination in December 2015. The examiner diagnosed cervical strain. The examiner opined the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained the separation physical examination in 1989 is silent for any neck condition. An MRI in February 2015 showed bulging disk at C5-6. The Veteran has no evidence of continuing care since discharge from service in 1991 until 2015 for a neck condition. The Veteran alleges continuing symptoms since service. At his October 2020 Board hearing the Veteran testified he first began to experience symptoms during service. He described that he believes his duties as an electrician contributed to his neck condition. He described that while performing his duties he was knocked out due to electrocution. He also described during a medical procedure while in the Navy he passed out and fell off the operating table. He described his symptoms as massive pain in the back of his neck when rotating it. He testified the pain has gotten worse, describing at times causes him to black out. He stated he did not seek treatment until the mid 1990s because up until that point he did not have any insurance. The Veteran is competent to report as to factual matters of which he or she has first-hand knowledge, to include events he witnessed during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds the Veteran’s statements credible as they are consistent with the circumstances of his service and the evidence of record. See 38 U.S.C. § 1154 (2012); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Further buttressing the Veteran’s statements are an October 1987 STR noting neck tenderness and a November 1987 STR noting complaints of back and neck pain radiates to front of the head. Accordingly, remand is required. There is a December 2020 private opinion that supports the Veteran’s claim; however, the examiner provided no supporting explanation or rationale and thus is insufficient to support a grant of service connection. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of all diagnosed cervical spine disorders from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. For each diagnosed cervical spine disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the condition had onset in, or is otherwise related to, active service. The examiner must address the following: 1) the December 2015 VA examination; 2) the lay statements contained in the June 2016 notice of disagreement; 3) Veteran’s testimony from the October 2020 Board hearing of continuing symptoms since service; and 4) the December 2020 private opinion from Dr. P.N. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.