Citation Nr: A25035862 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240916-473332 DATE: April 18, 2025 REMANDED Entitlement to service connection for intervertebral disc syndrome (IVDS) of the cervical spine with degenerative disc disease (hereinafter "cervical spine disorder") is remanded. Entitlement to service connection for myelopathy as secondary to a cervical spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1992 to April 1997. In September 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2022 decision. In October 2023, the Agency of Original Jurisdiction (AOJ) issued the decision on appeal. Specifically, the AOJ indicated that VA had received the Veteran's request for a Higher-Level Review, however, during the higher-level review a duty to assist error was discovered in the prior decision and the Veteran's claim was assigned to the supplemental review lane for additional development. In the September 2024 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 October 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims herein, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Finally, as an introductory matter, the Board acknowledges that in the September 2024 VA Form 10182, the Veteran requested review of the May 2022 rating decision which addresses the two issues on appeal. A claimant, or his representative, must file a properly completed Notice of Disagreement with a decision by the AOJ within one year from the date that the agency mails the notice of the decision. 38 C.F.R. § 20.203(b). Here, the September 2024 VA Form 10182 would not be timely filed as to the May 2022 rating decision. However, as outlined above, the Veteran did seek higher-level review of the May 2022 rating decision and as a result, a more recent rating decision for the two issues on appeal was issued in October 2023. As the September 2024 VA Form 10182 is timely to this decision, the Board has liberally construed the Veteran's Notice of Disagreement as an appeal of the October 2023 rating decision. See 38 C.F.R. § 20.202(a). 1. Entitlement to service connection for a cervical spine disorder is remanded. In May 2022, the Veteran was afforded a VA examination and medical opinion to determine the etiology of his cervical spine disorder. The examiner diagnosed IVDS and degenerative disc disease of the cervical spine and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that musculoskeletal conditions were not due to toxic exposure in Southwest Asia. The Board notes, however, that the Veteran's service treatment records reflect that he had a thoracic spine injury during service and recurrent back pain at separation from service. It was further noted in a September 2020 VA medical opinion that a thoracic strain can radiate up or down with mismanagement. The Board finds this evidence raises the question of whether the Veteran's present cervical spine disorder is either directly related to the in-service thoracic injury or secondary to his service-connected thoracolumbar strain. The May 2022 VA examiner was not asked to consider/discuss whether the Veteran's current cervical spine disorder is caused by or related to the Veteran's in-service thoracic spine injury or his service-connected thoracolumbar strain. Accordingly, the May 2022 VA examiner's medical opinion is insufficient for rating purposes. As this amounts to a pre-decisional duty to assist error, remand is warranted for a new VA medical opinion consistent with the directives herein. 2. Entitlement to service connection for myelopathy as secondary to a cervical spine disorder is remanded. As the claim seeking service connection for a cervical spine disorder will likely impact the Veteran's claim seeking service connection for myelopathy as secondary to a cervical spine disorder, the Board finds these issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined claim at this time. The matters are REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's cervical spine disorder. Physical examination of the Veteran may be scheduled/conducted if deemed necessary. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the medical opinion. (a) The examiner must opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's cervical spine disorder is caused by or related to the Veteran's active duty service, to specifically include his in-service thoracic spine injury. (b) The examiner must also opine as to whether the Veteran's cervical spine disorder is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) due to his service-connected thoracolumbar strain or aggravated by the service-connected thoracolumbar strain. In rendering the above opinions, the examiner should specifically consider and discuss the September 2020 VA medical opinion that indicates that a thoracic strain can radiate up or down with mismanagement. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. (Continued on the next page) ? A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.