Citation Nr: 23014635
Decision Date: 03/10/23	Archive Date: 03/10/23

DOCKET NO. 17-31 559
DATE: March 10, 2023

REMANDED

Entitlement to service connection for a cervical spine disability, to include cervical strain and retrolisthesis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the Army from September 2000 to November 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2015 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021.

This matter was denied by the Board in a December 2021 decision, along with the issue of entitlement to a total disability rating for compensation based on individual unemployability (TDIU). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2022, the Veteran and the Secretary of VA (parties) entered into a Joint Motion for Partial Remand (Joint Motion), vacating and remanding the December 2021 decision relating only to the issue of service connection for a cervical spine disability, because they determined the Board erred when it failed to ensure VA fulfilled its duty to assist. The Veteran did not contest the portion of the December 2021 decision pertaining to TDIU. The Court granted the Joint Motion the following week.

Specifically, the parties noted that, at the Veteran's Board hearing, he identified two private medical facilities which treated him for in-service injuries, Obici Hospital located in Suffolk, Virginia, and a Naval hospital located in Hampton Roads, Virginia. However, VA did not make efforts to obtain records from Obici Hospital or the Naval hospital. Therefore, the parties found that, as VA was aware of relevant outstanding private treatment records yet did not request the records nor notify the Veteran that it was unable to obtain them, the Board failed to ensure that VA's duty to assist was satisfied. It was noted that, on remand, the Board shall ensure that VA makes reasonable efforts to obtain any outstanding treatment records from the aforementioned locations. Thus, further remand is warranted to attempt to obtain these outstanding records. 

The matter is REMANDED for the following action:

1. Request that the Veteran give VA permission to obtain any outstanding treatment records relating to his service connection claim, including from:

	Obici Hospital located in Suffolk, Virginia;

	A Naval hospital located in Hampton Roads, Virginia;

	 and any other private medical professional whose records would be relevant to the issues on appeal.

2. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to service connection for a cervical spine disability. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and the opportunity to respond thereto before returning the matter to the Board for further appellate consideration.

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Wonderling, 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.