Citation Nr: 21014083 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-53 876 DATE: March 11, 2021 ORDER New and material evidence has been received to reopen the claims for service connection for conditions of the neck and esophagus. REMANDED The issue of entitlement to service connection for neck condition is remanded. The issue of entitlement to service connection for esophageal condition is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 2002 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision to the Board and requested a hearing review. In July 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of the proceeding is of record. Reopening of the claims of entitlement to service connection for esophageal and neck conditions is warranted. If a claim for entitlement to service connection has been previously denied and that submission is final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), affd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence is considered “new” when it was not previously submitted to agency decision makers. 38 C.F.R. § 3.156. It is considered “material” when the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if the evidence was not previously presented to the Board. See Maxon v. West, 12 Vet. App. 453, 459 (1999). In this case, multiple medical records related to the Veteran’s claim for neck and esophageal conditions were submitted to the record after the November 2014 rating decision. Within those records, was a private opinion relating the Veteran’s conditions to a motor vehicle accident experienced in 2002. See 11/13/2017 Medical Treatment Record-Non-Government Facility. That opinion relates to an unestablished fact with a reasonable possibility of substantiating the Veteran’s claim. Therefore, the Board finds that readjudication of the claim of entitlement to service connection for both neck and esophageal conditions is warranted. REASONS FOR REMAND The issues of entitlement to service connection for neck and esophageal conditions require remand for an adequate medical opinion. When VA undertakes to provide an examination for a claim of service connection, even if not statutorily obliged to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The absence of treatment records should not be the primary basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (citing Smith v. Derwinski, 2 Vet. App. 137, 140 (1992)) (noting that an examiner cannot rely on the absence of medical records corroborating an injury to conclude that there is no relationship between the veteran’s current disability and his military service). A medical examination report must contain both a conclusion with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the Veteran was afforded one VA examination in October 2014 which addressed both his claimed neck and esophageal conditions. However, the examiner relied on the absence of in-service treatment records reflecting complaint or treatment for neck or gastrointestinal issues to provide a negative nexus opinion. The Veteran submitted a private medical opinion in November 2017, but that opinion was conclusory. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, (1999). Therefore, the Board remands the claim for esophageal and neck conditions to obtain an adequate opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his neck condition. All clinical findings should be reported in detail. The entire claims file and this Remand should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file, the examiner should provide an opinion regarding whether: It is at least as likely as not (50 percent probability or greater) that the Veteran’s neck condition is causally related to his active service, specifically including as a result of motor vehicle accidents in 2002 and 2004. In answering this question, please specifically consider and address the November 2017 positive opinion provided by the Veteran’s treating chiropractor. For the purpose of providing the opinion requested, please accept as valid the Veteran’s statements regarding his involvement in motor vehicle accidents in 2002 and 2004. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not assessing the credibility of his statements at this time). A complete rationale for the examiner’s opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his esophageal condition. All clinical findings should be reported in detail. The entire claims file and this Remand should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file, the examiner should provide an opinion regarding whether: It is at least as likely as not (50 percent probability or greater) that the Veteran’s esophageal condition is causally related to his active service, specifically including as a result of motor vehicle accidents in 2002 and 2004. In answering this question, please specifically consider and address the November 2017 positive opinion provided by the Veteran’s treating chiropractor. For the purpose of providing the opinion requested, please accept as valid the Veteran’s statements regarding his involvement in motor vehicle accidents in 2002 and 2004. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not assessing the credibility of his statements at this time). A complete rationale for the examiner’s opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, 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.