Citation Nr: 21013099 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-16 346 DATE: March 8, 2021 ORDER New and material evidence having been received, the appeal to reopen a claim for entitlement to service connection for a cervical spine disorder, is granted. Entitlement to service connection for a cervical spine disorder, best characterized as cervical disc disease, is granted. FINDINGS OF FACT 1. A November 2010 rating decision, in part, denied entitlement to service connection for degenerative disc disease of the cervical spine; the Veteran did not appeal this denial in a timely manner, and no new and material evidence was submitted within the appeal period as to this issue. 2. Evidence received since the final November 2010 rating decision is new, relates to an unsubstantiated matter necessary to substantiate the claim for a cervical spine disorder, and raises a reasonable possibility of substantiating the claim. 3. Resolving all doubt in the Veteran’s favor, his cervical spine disorder, best characterized as cervical disc disease, is at least as likely as not related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The November 2010 rating decision which, in part, denied the claim of entitlement to service connection for degenerative disc disease of the cervical spine is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the previously denied claim of service connection for a cervical spine disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for a cervical spine disorder have been 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 November 1985 to December 1996. These matters come before the Board of Veterans’ Appeals on appeal of an October 2017 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2019, the Board accepted jurisdiction of the appeal as to whether new and material evidence has been received to reopen the claim for entitlement to service connection for a cervical spine disorder for the limited purpose of directing the Agency of Original Jurisdiction (AOJ) to issue a statement of the case (SOC) for this issue pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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 nor redundant of the evidence of record at the time of the last 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 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). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disorder. The Veteran seeks service connection for a cervical spine disorder. In May 2010, the Veteran, in part, filed an original claim for service connection for a cervical spine disorder. A November 2010 rating decision, in part, denied the claim based on findings that the condition was not occurred in, or caused by service. The November 2010 rating decision also explained the claim could not be granted on a presumptive basis. Notice of the determination was issued the same month. The Veteran did not appeal the denial of this claim, and no new and material evidence was received within the appeal period. Indeed, no additional evidence was associated with the record until the Veteran submitted an application for benefits, for disabilities other than a cervical disorder, in July 2013. Further, neither the Veteran nor his representative have asserted that the November 2010 rating decision is not final. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Additionally, although the Board recognizes additional service records were associated with the record including in August 2013, March 2015, and September 2015, these records are merely duplicative or cumulative of other service records previously of record, and thus, contained facts that were never in question, and do not relate to in-service injury, event, or disease or a nexus linking a cervical spine disorder to the Veteran’s active service. The Federal Circuit has accepted that the term relevant official service department record in 38 C.F.R. § 3.156(c)(1) means noncumulative and pertinent to the matter at issue in the case. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017). Thus, the November 2010 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed a claim to reopen a cervical spine disorder in October 2017. Evidence added to the claims file since the final November 2010 rating decision includes private treatment records; VA treatment records; a September 2019 private medical opinion; and, a December 2020 VA medical opinion. In particular, the September 2019 private medical examination report indicates a nexus exists between the Veteran’s cervical spine disorder and his military service. Thus, the September 2019 private medical examination report is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim for service connection for a cervical spine disorder is reopened. The appeal, to this extent, is granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for a cervical spine disorder As the Board reopened the claim for a cervical spine disorder based on new and material evidence, and the AOJ adjudicated this issue on a de novo basis in a December 2020 SOC, and in light of grant of the claim in full; the Veteran is not prejudiced by the Board’s consideration of this issue on the merits. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Veteran contends that he is entitled to service connection for a cervical spine disorder. The Board concludes that the Veteran has a current diagnosis of a cervical spine disorder that is a result of his military service. In this regard, proximate to the appeal period, April 2016 magnetic resonance imaging of the Veteran’s cervical spine indicated: (1) minimal wedging of C6 appears chronic; (2) discogenic and spondylitic changes at C6-C7 contribute to mild central canal stenosis and moderate bilateral neural foraminal stenosis; and, (3) mild discogenic and spondylitic changes elsewhere in the cervical spine. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Additionally, also proximate to the appeal period, a July 2016 letter from a physician at McBride Orthopedic Hospital stated the Veteran had a chief complaint of neck pain and right arm pain and endorsed a diagnosis with cervical disc disease C6-C7 with C7 right radiculopathy. During the pendency of the claim, a September 2019 private examiner endorsed a diagnosis of cervical disc disease and a December 2020 examiner noted the Veteran had an anterior cervical discectomy in 2019. Thus, the Board finds that disability, best characterized as cervical disc disease, has been demonstrated. The question remaining for consideration is whether the Veteran’s cervical disc disease is etiologically related to service. In this regard, the September 2019 private examiner opined that the Veteran’s cervical disc disease was more likely than not due an in-service injury. Specifically, the September 2019 private examiner noted the occurrence of in-service injury when the Veteran strained the muscles, ligaments and structures of his cervical vertebra during a fall. As rationale, the September 2019 private examiner explained abnormal biomechanical stresses in the cervical spine from loading and off-loading caused more stresses and abnormal strains on the vertebra and disc structures in the cervical spine, contributing to cervical strain, degenerative arthritis and subsequent deranged discs. The Veteran also underwent a VA examination in December 2020. The December 2020 examiner noted the Veteran had an anterior cervical discectomy in 2019 and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The December 2020 VA examiner further found the Veteran’s claimed cervical spine condition was less likely than not incurred in or caused by the right arm, right shoulder, right rhomboid and upper back pain during service. However, the December 2020 examiner indicated that service connection for a right shoulder strain with rotator cuff tendonitis was established but found there was no evidence in the medical literature to support the claim that the cervical spine condition was due to a shoulder or upper back condition, and as such, a nexus could not be established. Thus, it unclear as whether the December 2020 examiner intended to address the claim on a direct incurrence basis or a secondary basis. In light of the above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. In particular, the Board looks to the finding of the September 2019 private examiner, specifically the Veteran has a current diagnosis of cervical disc disease that was at least as likely as not related to his service. Further, the September 2019 private examiner’s opinion is supported by other evidence of record, including a July 2016 medical letter, which reflected the Veteran had a long-standing history of neck pain and right arm pain complaints and that this happened when he was in the military. Further, the Board deems the December 2020 VA examiner’s opinion to be inadequate as the rationale was unclear as to if the examiner was addressing the claim on direct incurrence basis or secondary basis. Given these facts, and when resolving doubt in the Veteran’s favor, the Board concludes that service connection is warranted for cervical spine disorder, best characterized as cervical disc disease, on a direct incurrence basis as related to the Veteran’s active service. Accordingly, to the extent service connection as secondary to a service-connected right shoulder disability has been raised, including by the December 2020 examiner, the Board need not address the claim on this basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. ESPINOZA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.