Citation Nr: 22016170 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-53 586 DATE: March 21, 2022 REMANDED Entitlement to service connection for a cervical neck condition, to include as secondary to service-connected back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty with the U.S. Army from February 1981 to May 1981, from July 15, 1986, to July 26, 1986, and from May 23, 1987, to June 6, 1987. In a December 2019 Board remand, the Agency of Original Jurisdiction (AOJ) was instructed to readjudicate the Veteran's claim of entitlement to service connection for cervical neck condition. In a July 2021 remand, the Board requested an addendum VA medical opinion on the issue of whether the Veteran's cervical neck condition is secondary to his service-connected back disability. Cervical Neck Condition Upon review of the record, the Board finds that prior to adjudication of this claim further development is warranted. Specifically, the Board finds that a remand is warranted to (1) attempt to obtain private medical records from Dr. D.Y. and to (2) obtain an addendum opinion that considers the updated medical records and the Veteran's lay statements. Outstanding Records At the outset, a review of the record indicates that there is pertinent evidence that has not been associated with the claims file. Here, the Board notes that the Veteran has identified Dr. D.Y. as a private medical doctor treating his neck condition. While the Board notes that in January 2022, the AOJ attempted to obtain medical records from Dr. D.Y., the AOJ sent the request to the wrong address. However, in a March 2022 medical letter, Dr. D.Y. provided the correct mailing address. Given such, as these records may assist in determining the nature and etiology of his current neck disability, VA has a duty to assist in obtaining identified private records. 38 C.F.R. § 3.159. Thus, on remand, the AOJ is requested to make reasonable efforts to obtain private medical records from Dr. D.Y. from the address identified in the March 4, 2022,, medical letter. Addendum Opinion The Veteran contends that his cervical neck condition has resulted in radiating pain up and down his neck. He contends that he cannot hold his neck downward for a long time without pain. He contends that his neck pain goes up and down to his shoulders and to lower back. The Veteran contributes his neck condition to his service-connected back disability. The Veteran further contends that medical records from Dr. D.Y. support his contentions. While in the December 2021 VA medical opinion, the VA examiner opined that the Veteran's neck condition is less likely than not secondary to his service-connected back disability, the Board notes that the examiner did not have the opportunity to review private medical records from Dr. D.Y. Thus, once the private records from Dr. D.Y. are obtained, an addendum opinion as to whether the Veteran's cervical neck condition is secondary to his service-connected back disability is warranted. Furthermore, the Board finds that the December 2021 VA medical opinion did not consider the Veteran's lay statements, in which the Veteran describes that radiating neck pain from his neck to his back is evidence that his neck condition is secondary to his back disability. Thus, on remand, an addendum opinion is warranted that also considers and addresses the Veteran's lay statements. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding records relevant to the Veteran's cervical neck condition claim, to include private medical records provided by Dr. D.Y. The AOJ is requested to make reasonable efforts to obtain private medical records from Dr. D.Y. from the address identified in the March 4, 2022, medical letter. All attempts to obtain these records must be documented in the claims file. The AOJ should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e) 2. Upon completion of the above to the extent possible, request an addendum opinion from a qualified VA medical professional, which considers all the evidence of record, to include any additional records obtained from Dr. D.Y., that addresses the following: Whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's cervical neck condition is (1) proximately caused by or (2) underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected back disability. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. In providing this opinion, the VA examiner must address the Veteran's contentions that his cervical neck conditions cause pain from his neck radiating down to back. If the VA examiner relies on medical literature, please apply the medical literature to the specific facts of this case. It is insufficient to make a general statement such as "the medical literature does not support an association between sleep apnea and diabetes." Rather, the VA examiner must explain why the medical literature does not support such an association. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.