Citation Nr: 21000901 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-47 534 DATE: January 6, 2021 REMANDED Entitlement to service connection for cervical spine with degenerative disc disease (DDD) secondary to right shoulder disability is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1970 to March 2002. By way of history, in October 2019, the Veteran appealed the portion of the Board’s December 2018 decision that denied service connection for cervical spine DDD and service connection for sleep apnea to the United States Court of Appeals for Veteran Claims (Court) which granted a Joint Motion for Partial Remand (JMPR) filed by the parties. As part of the motion, the appellant expressly waived his appeal to the portion of the Board’s decision that denied a petition to reopen a claim of entitlement to service connection for Bell’s palsy and indicated that the Court dismiss the appeal with respect to that issue. Pursuant to a JMPR, in an October 2019 Order, the Court vacated, in part, the Board’s December 2018 decision with regard to the issue of cervical spine and sleep apnea, and remanded the matter on to the Board. In November 2019, the Board remanded issues of left knee, psychiatric disorder, headaches, and erectile dysfunction which had been certified to the Board in a separate appeal. In May 2020, pursuant to the terms of the JMPR, the Board remanded the issues of cervical spine and sleep apnea for evidentiary development. In June 2020, the Board combined the above issues and again remanded the matter for further development as previous remanded issues returned without accomplishment. 1. Entitlement to service connection for cervical spine with DDD secondary to right shoulder disability. 2. Entitlement to service connection for sleep apnea. The record shows that the Veteran was afforded VA contract examinations in November 5, 2020. Thereafter, the RO issued a Supplemental Statement of the Case (SSOC) dated November 16, 2020 regarding cervical spine and sleep apnea. However, shortly after the SSOC was issued, additional information regarding cervical spine and sleep apnea in the form of VA contract examinations, medical opinions and radiology findings were associated with the claims folder on November 26, 2020. The additional pertinent evidence was not considered by the agency of original jurisdiction (AOJ) as required under 38 C.F.R. § 19.31(b)(1). The Board notes that initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative if the Veteran’s appeal to the Board is dated after February 2, 2013, as it is in this case. However, this automatic waiver does not apply to VA-generated evidence, such as VA contract examinations and medical records that were not submitted by the Veteran. 38 U.S.C. § 7105(e). Further, waiver of the right to a SSOC that considers additional evidence is only applicable to evidence submitted by the Veteran or his representative. 38 C.F.R. § 20.1305. Accordingly, the claims on appeal must be remanded for consideration of the additional pertinent evidence and issuance of another SSOC. See 38 C.F.R. §§ 19.31, 19.37. The matters are REMANDED for the following action: Review the record and any newly submitted evidence (including VA contract examination of November 2020 associated with the claims file following the issuance of the November 16, 2020 SSOC), and readjudicate the claims on appeal. If the benefit sought on appeal remains denied, the agency of original jurisdiction should provide the Veteran and his representative with a SSOC. An appropriate period of time should be allowed for response. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.