Citation Nr: A25035125 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 221128-300296 DATE: April 16, 2025 REMANDED Entitlement to service connection for a neck disability, to include cervical strain and cervicalgia, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from December 1971 to September 1979. He has additional periods of service in the Army National Guard, including active duty for training from May 1 to May 15, 1982, and active duty from December 2002 to November 2003. The Board thanks the Veteran for his service. In July 2022, the appellant submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an August 2021 rating decision. In August 2022, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the August 16, 2021, rating decision. In the November 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for a neck disability, to include cervical strain and cervicalgia. The Veteran contends that he suffers from a neck disability related to a whiplash injury that occurred on active duty for training (ACDUTRA) in the Missouri Army National Guard at Fort Riley, Kansas in 1982. He also attributes the disability to chiropractic treatment he received from an Army doctor or medic after the injury. The Veteran stated that he filed a report regarding the incident in his medical records at the time. See November 2020 statement. The Veteran's service personnel records show that he served in the Missouri Army National Guard from February 1982 to March 1984 and from November 1992 to January 1995, including a period of ACDUTRA from May 1 to May 15, 1982. In January 2021, the AOJ submitted a Personnel Information Exchange System (PIES) request using code NG1, specifying the unit address as "NATIONAL GUARD OF TEXAS HHD 3720 SPT BN DALLAS TX 75237 2299." In March 2021, the AOJ made a finding that service treatment records relating to the Veteran's neck injury were unavailable and that further efforts to obtain them would be futile. As mentioned above, the Veteran was serving in the Missouri National Guard, not the Texas National Guard, at the time of his reported neck injury. There is also no indication in the record that the AOJ attempted to obtain service records directly from the Missouri National Guard. In light of the above, the Board cannot conclude that records relating to his reported 1982 injury in the Missouri Army National Guard do not exist or that further efforts to obtain them would have been futile. C.F.R. § 3.159(c)(2). Additionally, a January 2020 VA treatment record indicates that the Veteran was referred to a non-VA neurosurgeon named Dr. Patel for neck pain and referred to notes from the office visit with the specialist. In a March 2020 letter, Dr. Patel stated that it was possible that some of the changes shown on an MRI of the cervical spine were caused by the Veteran's in-service neck injury. The AOJ should have notified the Veteran and requested that he provide a release to obtain records of this treatment. 38 C.F.R. § 3.159(e)(2). VA treatment records further show that a private neurosurgery progress note was uploaded to VistA Imaging in March 2020. On remand, this record should be associated with the claims file. Remand is warranted to correct these pre-decisional errors. 38 CFR § 20.802(a). The Board makes no credibility findings at this time as to any of the Veteran's lay statements. The matter is REMANDED for the following action: 1. Conduct all appropriate development to obtain any outstanding service treatment records relating to a reported May 1982 neck injury while on ACDUTRA at Fort Riley, Kansas in the Missouri Army National Guard. Please note that January 2021 PIES request listed the address of a Texas Army National Guard unit. If necessary, contact the Adjutant General of the Missouri National Guard. All efforts must be documented in the claims file. The AOJ is advised that the Veteran was a member of the following Missouri Army National Guard units: (a.) 1175th Military Police Company in Moberly, Missouri from February 1982 to March 1984. (b.) 1138th and 110th Engineering Battalions in Macon, Missouri from November 1992 to January 1995. 2. After receiving necessary authorization from the Veteran, make reasonable efforts to obtain records of treatment for a neck disability received from a neurosurgeon named Achal Patel, M.D. in Edinburg, Texas in March 2020. The Veteran must also be notified that he can submit these records to VA directly. 3. Please add the following private treatment record in VA custody to the claims file by printing and uploading it to VBMS. The Board does not have access to VistA or similar systems. (a.) "NEUROSURGERY PRGS NTE" dated March 4, 2020, entered on April 3, 2020. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alvarez, D.A. 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.