New and material evidence sufficient to reopen a claim for service connection for a cervical spine disability has been received, and the petition to reopen this claim is granted.
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Citation Nr: 19185704 Decision Date: 11/13/19 Archive Date: 11/13/19 DOCKET NO. 17-00 494 DATE: November 13, 2019 ORDER New and material evidence sufficient to reopen a claim for service connection for a cervical spine disability has been received, and the petition to reopen this claim is granted. Entitlement to service connection for a cervical spondylosis is granted. FINDINGS OF FACT 1. In a December 2000 rating decision, the RO denied entitlement to service connection for a cervical spine condition; the Veteran did not appeal the decision. 2. Evidence received since the December 2000 rating decision relates to an unestablished fact necessary to substantiate a claim of service connection for cervical spine condition. 3. There is a balance of evidence on whether cervical spine disability began during active service. CONCLUSIONS OF LAW 1. The December 2000 rating decision denying service connection for a cervical spine condition was not appealed and is final. 38 U.S.C. § § 7105; 38 C.F.R. § §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for a cervical spine disability. 38 U.S.C. § §§ 5108, 7105; 38 C.F.R. § §§ 3.156, 20.1100. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for establishing service connection for cervical spine spondylosis have been met. 38 U.S.C. § §§ 1110, 1116, 1154, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1995 to August 1999. New and Material Evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § § 5108; 38 C.F.R. § § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § § 3.156(a). 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. 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110,117 (2010). For the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence sufficient to reopen a claim for service connection for a cervical spine condition Historically, the Veteran filed a service connection claim for a cervical spine condition that the AOJ denied in a December 2000 rating decision. In that decision, the AOJ considered the theory of entitlement based on direct service connection, finding the evidence did not show a diagnosis of a cervical spine condition. The Veteran was notified of that decision in a December 2000 letter, and he did not submit a timely notice of disagreement with such. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the December 2000 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2000) [(2018)]. Upon review of the evidence received since the December 2000 rating decision, the Board finds that it raises a reasonability possibility of substantiating the Veteran’s claim. Specifically, in a November 2013 VA Cervical Spine Examination, the examiner diagnosed the Veteran with cervical spondylosis. The Board finds that the evidence associated with the record since the final December 2000 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim since it addresses one of the missing elements of a service connection claim that was the basis for the prior denial. Therefore, new and material evidence has been received, and the Veteran’s claim for service connection for a cervical spine disorder is reopened. Service Connection Generally, in order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Entitlement to service connection for a cervical spine condition The Veteran contends that his cervical spine condition is the result of his active service. Service treatment records (STRs) indicate a January 1998 complaint by the Veteran that a 35 pound back-pack, an “alice pack,” fell on the back of his head. He further stated that he had a headache and his neck was sore. Notably, subsequent records reflect complaints of left-hand tingling, but it was not made clear if this was considered associated with the head injury/neck complaints. In addition, no abnormalities of the neck were noted when the Veteran was examined in connection with his service discharge. The Veteran attended an examination for VA purposes in January 2000, where the examiner indicated a normal cervical spine. (The cervical spine was apparently examined in connection with a lumbar spine evaluation, since pain was radiating up from the lumbar region.) In November 2013, the Veteran attended a VA Cervical Spine Conditions Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed cervical spondylosis and opined that the Veteran’s condition was less likely than not incurred in or caused by service, because of normal x-ray readings in service, and the current findings were consistent with age-related degenerative arthritis. In May 2018, the Veteran’s representative provided a private medical opinion from Dr. H. A. Kuhn, MD. He implied a relationship between the Veteran’s current cervical spine disability and in-service injury. However, he was not explicit in this regard. In September 2018, the Veteran’s representative provided another private medical opinion, this time from Dr. C. N. Bash, MD., who related the Veteran’s cervical spine disability to the Veteran’s service, including the cited head injury, as well as the traumas one would reasonably expect to occur in combat arms training. Dr. Bash reinforced his view in an April 2019 report. In addition, an October 2018 opinion from a private chiropractor also expressed the view the Veteran’s neck disability was related to service. Although the favorable medical opinions do not appear to account for various facts that weigh against the claim, given the totality of the evidence and with the resolution of reasonable doubt in favor of the Veteran, the criteria for service connection for cervical spondylosis are met. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II 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.