Citation Nr: 21011401 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-29 606 DATE: March 1, 2021 REMANDED Entitlement to service connection for cervical radiculopathy, to include as secondary to a thoracolumbar spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1981 to July 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2016, the Board remanded the instant service connection claim as well as a claim for service connection for a cervical spine disorder for further development. In May 2018, the Board again remanded the service connection claims to obtain addendum VA opinions. In April 2020, the Board denied the Veteran’s claim for service connection for a cervical spine disorder, and remanded the claim for cervical radiculopathy to obtain an addendum VA opinion. Representative’s Motion to Withdraw In its April 2020 remand, the Board noted that correspondence from the Veteran’s representative dated September 24, 2019 declaring the representative’s withdrawal from representation of the Veteran’s claims for entitlement to service connection a cervical spine disability and cervical radiculopathy did not satisfy the requirements of 38 C.F.R. § 20.6(a) (withdrawal of services of a representative). Additional letters submitted by the Veteran’s representative dated in May 2020 and October 2020 likewise include neither the reason why withdrawal should be permitted, nor a signed statement certifying that a copy of the Motion was sent by first-class mail, postage prepaid, to the Veteran, setting forth the address to which a copy was mailed. 38 C.F.R. § 20.6(a)(2). Therefore, 38 C.F.R. § 20.6 is for application where the representative files a Motion to Withdraw. Because the Board has jurisdiction over this issue and the representative’s Motion to Withdraw does not satisfy the requirements of 38 C.F.R. § 20.6(a), the representative retains such status concerning these service connection claims until such time that an adequate motion is filed and the Board grants such motion. 1. Entitlement to service connection for cervical radiculopathy, to include as secondary to a thoracolumbar spine disability, is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. A review of the record reveals that additional evidence has been associated with record since the October 8, 2020 supplemental statement of the case (SSOC) that has not yet been reviewed by the agency of original jurisdiction (AOJ). This newly associated evidence includes a VA etiology opinion dated October 28, 2020. The Board sent a letter to the Veteran and his representative in December 2020 inquiring as to whether the Veteran would waive initial AOJ consideration of this newly received evidence. Although the Veteran returned the response page to this December 2020 letter, he did not indicate whether he waived AOJ consideration of the newly received evidence as no boxes were checked on the response form. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. §19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be furnished to the Veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. 38 C.F.R. § 20.1304(c). Therefore, the Board has no choice but to remand this claim so that the AOJ can consider the newly associated evidence in the first instance. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the AOJ should readjudicate the claims based on the entirety of the evidence, to include consideration of all evidence added to the record since the issuance of the October 2020 supplemental statement of the case. If the benefits sought on appeal are denied, the AOJ must furnish to the Veteran and his representative a supplemental statement of the case. An appropriate period of time should be allowed for response. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.