Citation Nr: 21007224 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-22 086 DATE: February 9, 2021 ORDER New and material evidence has been received sufficient to readjudicate the claim of entitlement to service connection for a neck disorder, previously claimed as neck contusion; the appeal is granted to this extent only. REMANDED Service connection for an anxiety disorder is remanded. Service connection for a cervical spine disorder, diagnosed as degenerative joint disease (DJD) and degenerative disc disease (DDD) of the cervical spine, is remanded. FINDINGS OF FACT 1. A March 2000 rating decision denied service connection for a neck disorder on the grounds that the Veteran did not have a current neck disorder. The Veteran did not timely file an appeal and the decision became final. 2. In April 2016, the Veteran filed a request for readjudication of the denial of his claim for service connection for a neck disorder. The evidence associated with the file subsequent to the March 2000 rating decision was not previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection. CONCLUSION OF LAW New and material evidence was received and the Veteran's claim for service connection for a cervical spine disorder is reopened. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1962 to January 1964. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2016 rating decision, service connection for dysthymia/persistent depressive disorder was granted and an initial rating was assigned. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). A Board hearing was scheduled for January 5, 2021, for which the Veteran was notified but did not report. The Veteran has not shown good cause for failing to appear at the scheduled hearing. As the Veteran was properly notified of the time, date, and location of his scheduled hearing and failed to appear, without good cause, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Service Connection The Veteran’s claim for service connection for a neck disorder was initially denied in a March 2000 rating decision as the Veteran did not have a current diagnosis of a neck disorder. Evidence considered in this rating decision included the Veteran’s service treatment records and post-service VA treatment records. The Veteran was informed of the denial in a March 2000 letter and he did not file a notice of disagreement within one year of the rating decision. New and material evidence was not received prior to the expiration of the appeal period and no additional relevant service records were received at any time after the March 2000 rating decision was issued. See 38 C.F.R. § 3.156 (b), (c). As such, the March 2000 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 22.1103. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase raises a reasonable possibility of substantiating the claim as enabling rather than precluding reopening. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Subsequent to the March 2000 rating decision, additional evidence has been associated with the record. Namely, the August 2016 VA examiner reported diagnoses of degenerative disc disease and degenerative joint disease of the cervical spine. The evidence is new and material, as it is not redundant of evidence already of record in March 2000, and it relates to unestablished fact of whether the Veteran has a neck disorder. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for a neck disorder is reopened. REASONS FOR REMAND A VA treatment record dated in November 1998 indicate that there may be outstanding and relevant Social Security Administration (SSA) records. 38 C.F.R. §§ 3.159(c)(2) and (3); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is obliged to attempt to obtain and consider records from SSA). At that time, the Veteran reported that in 1994 he was on complete Social Security Disability benefits. He also described pain in his back and neck. As such, there is a reasonable possibility that these missing records will help in substantiating his service connection claim for a neck disorder. Therefore, to ensure that VA has met its duty to assist, remand is necessary to obtain those records associated with his SSA disability award. As the outstanding treatment records may include records relevant to the Veteran’s service connection claim for anxiety, the claim is also remanded. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all Social Security Administration records, including a copy of the award letter. Any negative search results should be noted in the record. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.