Citation Nr: 21028457 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-59 427 DATE: May 11, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a neck condition is reopened. REMANDED Entitlement to service connection for a neck condition is remanded. FINDING OF FACT 1. In an unappealed rating decision issued in September 2015, the Veteran was denied service connection for a neck condition. 2. The evidence associated with the claims file subsequent to the September 2015 decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for a neck disability. CONCLUSION OF LAW 1. The September 2015 rating decision that denied service connection for a neck condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a neck condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1987 to December 1987 and from December 1990 to March 1991. New and material evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. An 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, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran was denied service connection for a neck condition in a September 2015 rating decision because there was no evidence that the Veteran's neck condition was incurred in or aggravated by service. The Veteran did not timely appeal the September 2015 rating decision, and no new evidence was received within one year. Therefore, that decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.156 (b). Service connection for a neck condition may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the prior final decision, additional VA treatment records have been associated with the file. The Veteran is currently service connected for several right shoulder disabilities. In May 2017, the Veteran received treatment for his neck condition. The physician noted that the treatment for the neck condition had eased the Veteran's shoulder pain indicating that the two conditions may be related. This evidence is new in that it was not associated with the file at the time of the September 2015 rating decision. Nor is the evidence cumulative or redundant of any evidence already of record. This new evidence raises a reasonable possibility that the Veteran has a current disability that was either (a) caused by or (b) aggravated by a service-connected disability thereby substantiating the Veteran's claim. Hence, the low threshold for meeting the criteria for reopening has been met. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for a neck disability is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service connection for a neck disability is remanded. The Veteran contends that his neck condition is etiologically linked to his service-connected right shoulder disabilities. VA medical opinions were associated with the file in May 2014, September 2015, and April 2017. The September 2015 examiner opined that the Veteran's neck condition was less likely than not related to service. The examiner reasoned that the Veteran's service treatment record was silent for complaints, treatment or diagnosis of a neck disability. The examiner's opinion lacks sufficient rationale as it does not account adequately for the Veteran's competent complaints and is over-reliant on the lack of documented in-service and post-service treatment. Importantly, the examiner failed to provide any medical basis to doubt the Veteran's reports of persistent neck pain during and after service. The May 2014 and April 2017 examiners opined that the Veteran's neck condition was less likely than not proximately due to or the result of the Veteran's service-connected shoulder disabilities. While the examiners' rationales addressed elements of secondary service connection, neither opinion addressed aggravation. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2016). Therefore, the question of "aggravation" is pertinent in order for the Board to properly adjudicate the Veteran's claim. Additionally, the Board notes that if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination report). Therefore, an addendum medical opinion addressing aggravation is needed for proper adjudication of the Veteran's claim. The matters are REMANDED for the following action: 1. Forward the entire claims file in electronic records to suitably qualified VA examiner. The examiner should review the claims folder and acknowledge such review. If additional examination is indicated, it should be scheduled in accordance with applicable procedures and all indicated studies should be performed. 2. Following a review of the claims file, the reviewing examiner is requested to: Provide, with complete rationale, an opinion as to whether it is at least as likely as not that the Veteran's cervical strain and/or degenerative arthritis were caused during active service or have been aggravated by his service-connected shoulder disabilities. The examiner should provide a complete rationale for the opinions, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. The examiner must specifically address the competent lay evidence of record, including the Veteran's statements of persistent neck pain during and after service. The examiner must also specifically address the May 23, 2017 notation by the Veteran's surgeon indicating that the Veteran's neck condition was one of the etiologies of his shoulder pain. (Continued on the next page) 3. After ensuring completion of the aforementioned development, the AOJ should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.