Citation Nr: A21019119 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 191115-47220 DATE: December 1, 2021 REMANDED Entitlement to service connection for a cervical disc bulge with joint space narrowing and degenerative joint disease (claimed as a "neck condition") is remanded. Entitlement to service connection for neuritis of the upper extremities is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from September 1986 to October 1993. On her VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the hearing option, and she since had her hearing in January 2021 before the undersigned Veterans Law Judge of the Board. Therefore, in deciding this appeal, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision that she has appealed (which was in September 2019) and any additional evidence that she or her attorney submitted during the hearing or within 90 days following it. See 38 C.F.R. § 20.302(a). It is permissible, however, to first correct pre-decisional, duty-to-assist, errors, and this is the reason the Board is remanding these claims. 1. Entitlement to service connection for a cervical disc bulge with joint space narrowing and degenerative joint disease (claimed as a "neck condition") is remanded. The Veteran contends that her neck condition is related to her military service, either directly or because it is secondary to (meaning caused or aggravated by) her now service-connected low back condition. In response to her claim, she was provided a VA examination in August 2019 during which the VA examiner opined that the Veteran's neck condition was unrelated to lymph node enlargement. The examiner also opined that the Veteran's service treatment records (STRs) contain "no compelling evidence" that she had a neck condition during her service and noted that her neck pain was not documented in treatment records until "in or around 2014." The Board sees she submitted written correspondence in May 2018 asserting that she had experienced neck pain for 12 years (so since 2006 or thereabouts). Also, in May 2018, she submitted a buddy statement from a former supervisor similarly attesting the Veteran had experienced chronic neck pain for 12 years. The August 2019 examiner goes on to note that the Veteran brought MRIs from a private hospital with her to her examination. These private MRIs do not appear to be associated with the claims file, however. In addition, the Board observes that the Veteran reported to that August 2019 examiner that she experienced right shoulder pain and neck pain during her service that she believes was related to a pregnancy at the time. STRs also indicate she complained of both upper and lower back pain. This was not specifically addressed by the examiner, who instead generally stated that the Veteran's neck condition was not related to her service without specifically addressing her contentions. In January 2018, she also submitted written correspondence contending that her cervical spondylosis is secondary to her low back condition. Because the Veteran identified relevant outstanding private treatment records prior to the September 2019 rating decision on appeal, VA must try and obtain these additional records before deciding her appeal of these claims. In addition, further development of these claims is required to obtain medical comment specifically addressing the Veteran's contentions that her neck condition is: 1) related to her pregnancy during her service and 2) that she has experienced neck pain since at least 2006 (so well before the 2014 inception the August 2019 VA compensation examiner cited). Moreover, the Board also sees the Veteran has contended both in 2018 and more recently during her hearing that her neck condition is secondary to her low back condition. Therefore, the examiner must also address this additional theory of entitlement. 2. Entitlement to service connection for neuritis of the upper extremities as secondary to cervical disc bulge with joint space narrowing and degenerative joint disease also is remanded. Because the decision on the claim of entitlement to service connection for a cervical disc bulge with joint space narrowing and degenerative joint disease could significantly impact the disposition of this derivative claim for service connection for neuritis of the upper extremities, these claims are "inextricably intertwined". Thus, the Board must temporarily defer considering this claim for neuritis pending completion of the additional development being directed concerning the underlying claim for the cervical spine (neck) disability. Accordingly, these claims are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private treatment records she referenced during her August 2019 VA examination (and that she apparently brought with her to that examination). Make two requests for these additional records unless it is clear after the first request that a second request would be futile. Alternatively have the Veteran submit these records, herself, assuming she has not already, since she apparently brought them with her to her August 2019 VA compensation examination. Appropriately notify her and her attorney if unable to obtain these additional records. 2. After obtaining these additional records, also obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's neck condition (to include especially the cervical disc bulge with joint space narrowing and degenerative joint disease) is at least as likely as not related or attributable to her military service. In making this important determination, the examiner is specifically asked to consider the Veteran's statement that she has experienced neck pain since 2006 or thereabouts (rather than just since 2014, which the August 2019 VA examiner concluded) and address her contention that her neck and corresponding arm pain are related to her pregnancy during her service. The examiner is also asked to address whether the Veteran's current neck condition is related to her complaints of upper and lower back pain during service. If the Veteran's neck condition is not found to be directly related to her service, the examiner is asked to additionally indicate whether it is as likely as not the Veteran's neck condition alternatively is proximately due to, the result of, OR aggravated by a service-connected disability, to specifically include her now service-connected low back condition. 3. After completing the above development, and any additionally indicated development, readjudicate the claim for service connection for a cervical spine disability (neck condition), also the derivative, so inextricably intertwined, claim for service connection for neuritis of the upper extremities secondary to the cervical spine disability (neck condition). **NOTE: Whether the Veteran actually needs to be reexamined (meaning undergo another in-person examination) to provide this additional medical comment is left to the discretion of the clinician designated to provide this addendum opinion. To assist in making these important determinations, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.