Citation Nr: 22014549 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-20 513 DATE: March 14, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a cervical spine (neck) disability is reopened. REMANDED Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. A June 2014 rating decision denied service connection; the Veteran did not appeal this denial; and no new evidence was submitted within the one-year appeal period following the issuance of that decision. 2. Evidence received since the June 2014 rating decision is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim for service connection for a neck disability. CONCLUSION OF LAW The criteria for reopening the previously denied claim of service connection for a neck disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1979 to September 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2021 decision, the Board remanded these matters for additional development. New and Material Evidence As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened, and the former disposition reviewed. 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). In determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the language of 38 C.F.R. § 3.156 (a) creates a low threshold, and the Court has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason the claim was last denied but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The record shows that a June 2014 rating decision denied the Veteran's claim of service connection for a neck disability. The Veteran did not appeal the June 2014 rating decision. Moreover, new evidence was not added to the claims file in the first year after the June 2014 rating decision. 38 C.F.R. § 3.156(b). Accordingly, the Board finds that the June 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran refiled the claim in August 2014. The RO confirmed and continued the earlier denial in a December 2014 rating decision. The Veteran appealed the decision in May 2015. Since the final decision, the VA received evidence which may establish a nexus between the Veteran's current disabilities and service. As this evidence is new and was not of record at the time of the prior denial, the Board finds that it was not previously considered by agency decision makers. The Board also finds that this new evidence is not cumulative and redundant of evidence already of record. And, because a nexus between the Veteran's current disabilities and service is a condition precedent for establishing service connection (see Hickson v. West, 12 Vet. App. 247, 253 (1999)), the Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection a neck disability, and therefore raises a reasonable possibility of substantiating such a claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence constitutes new and material evidence, and the claim is reopened. 38 U.S.C. § § 5108, 7104; 38 C.F.R. § 3.156. REASONS FOR REMAND Regrettably, the Board finds that additional development is necessary before the following issue on appeal can be adjudicated. Entitlement to service connection for a neck disability. The Veteran contends that his current neck disability, diagnosed as degenerative disc disease of the cervical spine with strain, had its onset during active service. The Veteran has also associated his neck disability with his service-connected headache condition. The Veteran's service treatment records show that the Veteran received treatment, including physical therapy, for cervical spine pain and stiffness during active service. Imaging studies performed in May 2013, July 2013, and November 2018 showed degenerative changes in the Veteran's cervical spine. On review, it appears that pertinent VA treatment records may still be outstanding. Over the past several years, the Veteran's treatment records show that he frequently requested additional treatment, testing, and examination for his cervical spine condition. The Veteran has also specifically sought an additional evaluation or explanation as to the etiology of his neck disability from VA health providers. In March 2021, the Veteran was provided a neurosurgery referral for his cervical spine condition. In a VA amputee clinic follow-up visit report from September 2021, it was noted that the Veteran underwent cervical spine surgery (anterior approach) since his last clinic visit in July 2021. A VA pharmacist report from October 2021 indicates that the Veteran had two vertebrae removed and 6 screws placed in July 2021. The Veteran's VA podiatry treatment records from September, November, and December of 2021 also indicate that the Veteran received neck surgery on the vertebrae of his cervical spine. Unfortunately, the record does not contain any records related to the Veteran's surgery, neurosurgery referral, or any additional treatment, evaluation, or examination for his cervical spine condition subsequent to March 2021. Additionally, the Board notes that, pursuant to the September 2021 remand, the RO obtained an addendum medical opinion in December 2021 for the Veteran's neck condition based on review of the Veteran's records (without in-person examination). However, the most recent medical record referenced in the medical opinion was the March 2021 neurosurgery referral. The Veteran's cervical surgery was not mentioned or addressed in the examination. As such, a remand is necessary to obtain the outstanding treatment records regarding the Veteran's neck disability and obtain a new examination. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records and associate them with the evidence of record. The request for records should include a search for the Veteran's cervical spine surgery performed in July 2021, neurosurgery referral, and any other associated treatment records. If possible, the Veteran himself should submit these records (if any), and any other new treatment for this problem, himself, to expedite the case. Any assistance on this issue would be appreciated. 2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include private treatment records. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file. If any records are not available, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an in-person examination by an appropriate clinician to determine the nature and etiology of his neck disability. Specifically, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's neck disability had its onset during or is otherwise related to service, including his service-connected headache disability. The examiner should consider the Veteran's statements regarding onset of and continuity of symptoms. A complete rationale for any opinions expressed should be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran's neck conditions and provide a rationale for all conclusions reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. After completion of the aforementioned, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg, 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.