Citation Nr: 21011783 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 10-47 302A DATE: March 2, 2021 ORDER The petition to reopen the claim of entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to a compensable disability rating prior to November 12, 2015 for limitation of flexion of the right hip is remanded. Entitlement to a disability rating in excess of 10 percent from November 12, 2015 forward for limitation of flexion of the right hip is remanded. Entitlement to a compensable disability rating prior to November 12, 2015 for limitation of extension of the right hip is remanded. Entitlement to a disability rating in excess of 10 percent from November 12, 2015 forward for limitation of extension of the right hip is remanded. FINDING OF FACT 1. The Veteran was denied service connection for a cervical spine disability in a January 2014 rating decision. He did not perfect an appeal during the requisite time period, and the decision became final. 2. Evidence associated with the record since the January 2014 rating decision does not relate to unestablished facts or raise a reasonable possibility of substantiating the claim for service connection for a cervical spine disability. CONCLUSION OF LAW New and material evidence has not been received since the January 2014 rating decision and the claim seeking entitlement to service connection for a cervical spine disability is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1996 to September 1996 and from June 2004 to August 2005, including service in Kuwait and Iraq. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These issues were subject to a joint motion for partial remand by the United States Court of Appeals for Veterans Claims (Court) in September 2020. 1. The petition to reopen the claim of entitlement to service connection for a cervical spine disability If a claim of entitlement to service connection has been previously denied and that decision became 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. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for a cervical spine condition in a January 2014 rating decision, finding that the condition was not related to his military service. This denial was continued in an October 2015 statement of the case, but the Veteran did not file a substantive appeal. Therefore, the January 2014 rating decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. The Veteran filed a claim to reopen in February 2017. Although the RO reopened the claim in a May 2017 rating decision, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address whether new and material evidence has been received to reopen the claims for service connection. That matter is relevant to the Board’s jurisdiction to reach the underlying claim and adjudicate the merits of the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In this case, the Board finds that the evidence received since the January 2014 rating decision is not new and material. The Veteran has not submitted new evidence suggesting that his cervical spine disability is related to his military service or was caused or aggravated by a service-connected disability. Instead, he submitted additional records showing treatment for his cervical spine disability and additional statements that he believes the disability is related to his service. This evidence is cumulative to the evidence considered in the January 2014 rating decision. 38 C.F.R. § 3.159. Although the Veteran initially claimed entitlement to service connection for a cervical spine condition secondary to his service-connected low back disability in his February 2017 claim to reopen, raising an alternate theory of entitlement does not operate to transform his previously denied claim for service connection for a cervical spine disability into a new claim. See, e.g., Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 206 (2009); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). New and material evidence is required prior to reconsideration of the previously finally denied claim of service connection. Here, evidence added to the record since the January 2014 rating decision includes an April 2017 VA medical opinion which does not link the Veteran’s cervical degenerative changes to service. See VA Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ) and VA Medical Opinion DBQ dated April 14, 2017. As this VA examination report provides negative evidence against the claim, although it is new evidence, it cannot be considered material, as it does not raise a reasonably possibility of substantiating the claim for service connection. See Villalobos v. Principi, 3 Vet. App. 450 (1992) In addition, the newly submitted medical opinion does not support the Veteran’s new theory of entitlement. The VA examiner concluded that the cervical degenerative changes are not secondary or proximately due to the service-connected low back disability as those conditions belong to different anatomical sites (neck and back) and any incident or diagnosis that could affect one of the sites is independent from the other. In this case, the evidence does not provide any new information pertinent to the question of whether the Veteran’s cervical degenerative changes are related to service or service-connected disability and thus, it cannot be considered new and material sufficient to reopen the claim. See Shade, supra. The more recent record does not contain additional evidence relevant to the cervical spine. Because new and material evidence has not been received, the Veteran’s claim for service connection for cervical degenerative changes is not reopened and service connection remains denied. 38 U.S.C. § 5108; 38C.F.R. §3.156 (a). REASONS FOR REMAND 1. Entitlement to a compensable disability rating prior to November 12, 2015 for limitation of flexion and extension and in excess of 10 percent thereafter of the right hip is remanded. The Board finds remand is necessary to comply with the Court’s March 2019 and September 2020 remand instructions. In March 2019, the Court granted a joint motion for partial remand, finding that the VA examinations of record did not comply with Correia v. McDonald. 28 Vet. App. 158, 165 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court instructed the Board to remand for new examinations. In December 2019, the Board issued a decision without remanding for new examinations. As such, the Court in September 2020 again instructed the Board to remand for examinations as instructed in March 2019 joint motion. The Board shall do so now. See Stegall v. West, 11 Vet. App. 268 (1998). Remand is necessary to obtain a VA examination that complies with the range of motion testing requirements as set out in Correia and adequately addresses whether the Veteran has or had additional functional loss during flare-ups as required by Sharp. Although the Correia and Sharp decisions were not decided at the time of the August 2012 or November 2015 VA examinations, the RO should additionally attempt to obtain a retroactive opinion for the period prior to November 2, 2015, to determine if estimates can be made that comply with Correia and Sharp, given the inadequacies noted in the March 2019 joint motion. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for the right hip. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records 2. After records development is completed, schedule the Veteran for a VA hip examination to determine the current symptoms, level of severity, and functional impairment associated with his right hip. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. In so doing, the examiner is asked to test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner is asked to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. Additionally, the examiner is asked to provide a retrospective opinion, to the extent possible, on range of motion testing on active motion, passive motion, and pain with weight-bearing and without weight-bearing of the Veteran’s right hip and any additional loss of range of motion during flare-ups for the period prior to November 2, 2015. In rendering this opinion, the August 2012 and November 2015 VA examinations should be considered along with other evidence of record. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.