Citation Nr: 21061474 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-35 530 DATE: October 4, 2021 REMANDED Entitlement to service connection for herniated cervical disc is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the U.S. Navy on active duty from September 1974 to July 29, 1982 and from July 1982 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2019, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing at the RO in St. Petersburg, Florida; a transcript of the hearing is of record. In November 2019, the Board remanded the claim for an examination to determine the nature and cause of the Veteran's neck disability. McLendon v. Nicholson, 20 Vet. App.79 (2006). This matter has been returned to the Board for adjudication. 1. Entitlement to service connection for herniated cervical disc On remand, the Veteran was afforded a VA examination in December 2019. The examiner noted the Veteran's documented treatment for his neck in his service treatment records (STRs). The examiner opined that the Veteran's neck disability is less likely than not due to service. By way of rationale, the examiner found that the Veteran was treated for a muscle spasm of the neck and not the cervical discs, no other documented complaints or treatment of the neck in service and no objective evidence of a chronic disability. However, this opinion appears to be based on the lack of in-service treatment and diagnosis. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (an examination is inadequate where the examiner relies on the absence of evidence in the STRs to provide a negative opinion). Additionally, the VA opinion does not reflect consideration of the Veteran's assertion that there has been no subsequent injury to his neck, and the buddy statements that corroborate the Veteran's in-service injury and continuous problems since service. Moreover, the examiner failed to address an opinion from the Veteran's private physician who has treated him for almost 20 years and reflects that the Veteran's neck condition may be due to his service. See August 2014 Private Treatment Record. As such, an addendum opinion is warranted that provides adequate rationale for the Veteran's disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. TDIU As the issue of service connection for herniated cervical disc is being remanded, these claims are inextricably intertwined. Accordingly, adjudication of this matter will be deferred until further development of the inextricably intertwined issue is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App.180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records and request the Veteran submit or authorize for release any outstanding relevant private treatment records. VA records date to December 2019. 2. Obtain a VA medical opinion from an appropriate clinician to determine the nature and origin of the Veteran's neck condition. Whether a physical examination is necessary will be left to the discretion of the assigned examiner. The examiner shall review the entire claims file and include a copy of this REMAND with any examination reports. The examiner shall provide an opinion as to the following: (a.) Whether the Veteran's current neck condition is at least as likely as not (50 percent or greater probability), the result of his in-service injury to his neck? The examiner must address the Veteran's lay and buddy statements, his May and June1982 STR entries containing complaints of neck pain, and the August 2014 opinion from his private physician. 3. The examiner is advised that the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service may not, alone, serve as the sole basis for a negative opinion. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.