Citation Nr: 21027640 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-26 461 DATE: May 6, 2021 REMANDED Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected degenerative arthritis of the thoracolumbar spine status post surgery, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from October 1966 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board denied the claim of entitlement to service connection for a cervical spine disability. The Veteran appealed the Board's November 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court granted a November 2020 Joint Motion for Remand (JMR) vacating the Board's November 2019 decision, and remanding the matter for further consideration and instructions consistent with the JMR. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case 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. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability, is remanded. In the November 2020 JMR, the parties found that the Board's November 2019 decision of the instant claim on appeal must be vacated and readjudicated, as the record does not include private treatment records of surgeries that the Veteran underwent in 1999 and 2007. Specifically, a February 2019 VA examination report notes that the Veteran underwent a cervical laminectomy in 1999, and an October 2009 private treatment records notes that the Veteran underwent a cervical discectomy and fusion of C5-6 and C6-7. A review of the record shows that the Agency of Original Jurisdiction (AOJ) has not attempted to secure these potentially relevant records of the Veteran's treatment for his neck. Such records are pertinent in this matter, and VA's duty to assist requires that they be sought. The record does not reflect an attempt to obtain them. Authorization from the Veteran is needed for such development. Moreover, the Board finds that a VA addendum opinion is required. The February 2018 report states that there are no records of complaints or treatment of a neck condition in service. However, the same report notes a diagnosis of a neck strain in 1967, which is noted to be during the Veteran's active duty service. Upon remand, this discrepancy must be addressed in the addendum opinion. Additionally, upon remand, the examiner must accept as true for the purposes of the remand that the Veteran injured his neck due to an incident in which he was driving a tanker truck in a convoy when an airborne armored personnel carrier pulled in front of him causing a crash. See August 2013 DRO Hearing Transcript; September 2013 VA Form 9; February 2018 VA examination report. The addendum opinion must also address whether the Veteran's cervical spine disability is caused by or aggravated by his service-connected lumbar spine disability. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. Specifically, attempt to obtain records associated with the Veteran's 1999 and 2007 neck surgeries. All attempts to obtain these records should be documented in the claims file. 2. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently present cervical spine disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. (a) Initially, the examiner should reconcile the discrepancy in the February 2018 report that states there are no records of complaints or treatment of a neck condition in service and then includes a diagnosis of a neck strain in 1967, which is noted to be during the Veteran's active duty service. (b) For each neck disability, the examiner must opine whether it is at least as likely as not related to service. In making this assessment, please accept as true for the purposes of this remand that the Veteran has stated that he injured his neck due to an incident in which he was driving a tanker truck in a convoy when an airborne armored personnel carrier pulled in front of him causing a crash. (c) The examiner must offer an opinion as to whether it is at least as likely as not that any diagnosed neck disability is secondary to his service-connected lumbar spine disability. The examiner should address the Veteran's statements and reports in relation to the claimed disability. In consideration of all of the Veteran's statements and reports, the examiner is also asked to offer an opinion as to whether it is at least as likely as not that any currently diagnosed neck disability was either caused or aggravated by the Veteran's service-connected lumbar spine disability. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.