Citation Nr: 1749113 Decision Date: 10/31/17 Archive Date: 11/06/17 DOCKET NO. 13-35 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for arteriovenous malformation (AVM) with repair. 2. Entitlement to service connection for cephalgia, to include as secondary to AVM with repair (claimed as chronic migraine headaches). 3. Entitlement to service connection for bilateral eye disability, to include as secondary to AVM with repair. 4. Entitlement to service connection for a chronic disability manifested by stomach problems, to include as secondary to AVM with repair. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to March 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Although the Nashville RO prepared the decision, it was sent to the Veteran by the RO in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in June 2014. A transcript of that hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In June 2015, the Board remanded the Veteran's case, in part, to schedule a VA examination with a neurologist and to obtain an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's AVM with repair was incurred in or is otherwise related to service. The examiner was asked to discuss the Veteran's report that she experienced headaches since service. The Veteran was provided a VA medical examination in September 2015. The examiner was not a neurologist as requested by the Board's June 2015 remand. The examiner opined that the AVM was less likely as not caused by or a result of or incurred in service because it was a developmental condition. However, the Board finds that the examiner's opinion is entitled to little probative value as the examiner did not address whether it was a developmental defect or disease. For example, a developmental or congenital disease, even if hereditary, can be found to be service connected if it first manifests during active service. See VAOPGCPREC 67-90. On the other hand, a developmental or congenital defect cannot be service connected, but if there is a superimposed injury or disease, service connection can be warranted for the additional disability. See VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. In December 2016, a neurologist opined that the AVM was not incurred in, caused by, or related to the Veteran's service. The examiner stated that the AVM was not known or "specifically" symptomatic and it was "probably" not incurred in service. The examiner opined that AVM, a congenital lesion, was "probably" not caused by service and was "probably" not related to service activity 20 years ago. The Board finds that the December 2016 examiner's opinion is not adequate. The neurologist used the term "probably" when providing reasoning for the opinion as opposed to the correct standard which is whether it is at least as likely as not, i.e. 50 percent probability or higher, regarding whether a claimed disability is related to active service. The Board finds that a new VA addendum opinion must be obtained. The examiner must address whether the AVM is a congenital or developmental disease which first manifest in service, or a congenital or developmental defect and, if so, whether the AVM was subject to a superimposed injury or disease during service that resulted in additional disability. If it is not a congenital or developmental defect or disease, then the examiner must address whether the disability is related to active service. Finally, the remaining issues on appeal must be remanded to the AOJ as they are inextricably intertwined with the issue of entitlement to service connection for AVM with repair. Accordingly, the case is REMANDED for the following action: 1. Request that the neurologist who provided the December 2016 VA medical opinion provide an addendum opinion concerning the etiology of the Veteran's AVM. The claims folder must be made available for review. After a review of the claims folder, the examiner is asked to address the following: a. Is the AVM a congenital or developmental defect? If so, is it at least as likely as not (50 percent probability or more) that the AVM was subject to a superimposed disease or injury during service that resulted in additional disability. If so, identify the additional disability. b. If the AVM is a congenital or developmental disease, is it at least as likely as not (50 percent probability or higher) that the AVM was incurred in or otherwise related to active service? c. Is it at least as likely as not (50 percent probability or higher) that the Veteran's cephalgia, claimed as chronic migraine headaches, was incurred in or otherwise related to active service? Rationale must be provided for any opinion reached. Specifically, the examiner is asked to discuss the service medical treatment records and the Veteran's statements regarding chronic headaches. In addition, the examiner is asked to discuss the September 2011 opinion by N. G. P., M.D. who indicated that the Veteran's headaches during active service were related to AVM which subsequently ruptured in 2006 and had the Veteran been provided an MRI scan during active service, the AVM would have been diagnosed at that time. 2. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran. After allowing an appropriate amount of time for response, return the case to the Board for review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).