Citation Nr: 22055158 Decision Date: 09/27/22 Archive Date: 09/27/22 DOCKET NO. 18-28 629 DATE: September 27, 2022 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a cervical spine disability, to include degenerative joint disease, is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for a cervical spine disability, to include degenerative joint disease, is remanded. FINDINGS OF FACT 1. The claim for service connection for cervical spine degenerative joint disease was previously denied in an April 2008 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the Veteran was mailed notice of the decision. 2. The additional evidence received since the final April 2008 rating decision relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The additional evidence presented since the April 2008 rating decision is new and material, and the claim for service connection for a cervical spine disability, to include degenerative joint disease, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970. This appeal is before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office. In April 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is included in the claims file. A claimant may reopen a finally adjudicated legacy claim (decided prior to February 19, 2019) by submitting new and material evidence. New evidence means existing evidence not previously submitted to VA. 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), 19.2(a). The agency of original jurisdiction (AOJ) most recently denied service connection for cervical spine degenerative joint disease in an April 2008 rating decision. This decision was not appealed, and no new evidence pertinent to the claim was received by VA within one year from the date that the AOJ mailed notice of the decision to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of that decision. Therefore, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 19.52, 20.1103; see also 38 C.F.R. § 3.156(b), (c). The basis of the prior final denial was that the evidence did not reflect that the Veteran's claimed disability either occurred in or was caused by service; there was no evidence of complaints, injury, treatment, or diagnosis of the condition in service or any medical opinion or other sufficient evidence linking a current cervical spine disability to service. Evidence obtained since the April 2008 rating decision includes a December 2015 statement from the Veteran's wife asserting that, during his period of service, the Veteran came home complaining about a headache and pain from the lid of an armored personnel carrier (APC) coming down hard on his head, and that ever since then he had been complaining about neck pain and headaches, and looked uncomfortable and in a lot of pain. It also includes a November 2001 private treatment record showing that the Veteran reported neck pain and tightness and a history of neck injury approximately 30 years prior. Without addressing the merits of this new evidence, the Board finds that it relates to the unestablished fact of whether a current cervical spine disability may be associated with an in-service injury, and raises a reasonable possibility of substantiating the Veteran's service connection claim. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, this evidence is new and material, and the claim for entitlement to service connection for a cervical spine disability, to include degenerative joint disease, must be reopened. REASONS FOR REMAND As reflected in his original September 2007 service connection claim, the Veteran asserts that he currently suffers neck pain as the result of being struck hard by a hatch on an APC during service. In a December 2015 statement, he asserted that in Ft. Riley in 1969 a lid came down on his head, he "was out for a while," and, when he came to, he had a bad headache. He stated that his sergeant talked him out of leaving the maneuver and going to sick bay, and the Veteran agreed. He asserted that, since leaving service, he had had very bad neck pain, which caused headaches, and that he now had a severe case of arthritis. During his April 2022 Board hearing, the Veteran reiterated that, in service, a lid came down hard on his head when the APC he was in hit a bump, and that he did not go to sick call at the urging of his sergeant. He further testified that at least one physician of his had attributed his current neck pain to his in-service injury. In support of his claim, the Veteran submitted a December 2015 statement from his wife asserting that, during the Veteran's period of service, he came home complaining about a headache and pain from the lid of an APC coming down hard on his head. She asserted that, ever since then, he had been complaining about neck pain and headaches, and looked uncomfortable and in a lot of pain. However, the current evidence of record is very mixed as to whether any current neck pain or cervical spine disorder might possibly be related to any injury or event during the Veteran's period of service. Service treatment records, while reflecting that the Veteran sought treatment for a number of medical issues including ear pain, redness and discharge of the eye, swollen tonsils, and breathing problems through the nose, do not reflect any complaints or findings related to neck pain, the cervical spine, or the Veteran's claimed in-service head injury on an APC. Furthermore, on March 1970 examination for separation from service, the Veteran had a normal evaluation of the head, neck, spine, and other musculoskeletal system; at that time he denied having or having ever had a head injury or frequent or severe headaches or back trouble of any kind, and did not report any neck or cervical spine problems as part of his medical history. After service, on November 2001 private treatment, the Veteran reported headaches present for approximately 7 months that always arrived with neck pain and tightness, and also reported a history of neck injury approximately 30 years prior; the impression was probable muscle contraction headaches, which the physician suspected were related to his previous neck injury. Chronic neck pain was further noted in January and August 2005 private treatment records. In February 2006, the Veteran reported shoulder and neck pain with duration of over 5 years. On June 2006 magnetic resonance imaging (MRI) of the cervical spine, a history of previous neck injury was noted, as well as current neck pain and popping; MRI showed multilevel spondylotic changes exacerbating a degree of congenital canal stenosis, resulting in mild-moderate multilevel central canal stenosis. However, private treatment records received from the Social Security Administration, dated in 2006, show extensive treatment for the lumbar spine related to May and July 2006 workplace injuries, but such records reflect no reports of neck pain or other findings or medical history related to the cervical spine. Furthermore, such private treatment records reflect a cervical spine strain following a November 2006 motor vehicle accident; X-rays were unremarkable and no history of prior neck injury or disorder was noted. In March 2007, the Veteran was again treated with chief complaints of neck pain and headaches, which were noted to be a new problem rather than a chronic one; under the heading, "Possible Injury," the only injury noted was the November 2006 motor vehicle accident, at which time the Veteran was noted to have "had cervical strain." On the Veteran's initial VA treatment in March 2007, current medical problems included neck pain. In June 2007, neck pain for many years was noted, and cervical spine X-rays revealed degenerative joint disease at the lower 2 cervical discs, noted to be a minor abnormality, and "[degenerative joint disease] as expected" was assessed. The evidence is therefore unclear as to whether the Veteran's current cervical spine problems might be related to his claimed in-service injury, and there is no medical opinion addressing the matter. Accordingly, the matter must be remanded for such a medical opinion. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed cervical spine disability. The examiner must review the claims file and provide a response to the following: Is any cervical spine disability, to include degenerative joint disease, approximately at least as likely as not related to service, to include the Veteran's asserted in-service injury of being struck on the head by a hatch on an armored personnel carrier. The examiner should specifically consider the evidence discussed above, to include the November 2001 private treatment record reflecting a history of neck injury approximately 30 years prior, and the 2005 to 2007 private treatment records for neck pain. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After completing the above and any other necessary development, readjudicate the appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrew Mack, 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.