18-54 604

• Court: Board of Veterans' Appeals
• Decided: July 30, 2019
• Docket: 18-54 604
• Status: Unpublished

Opinion

Citation Nr: 19158993 Decision Date: 07/30/19 Archive Date: 07/30/19

DOCKET NO. 18-54 604 DATE: July 30, 2019

REMANDED

Entitlement to service connection for left temporal arteriovenous malformation (AVM), claimed as brain trauma or head injury, to include as secondary to service-connected vertigo, is remanded.

Entitlement to service connection for tremors, right side, to include as secondary to AVM, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1971 to November 1972 and from September 1974 to August 1977.

The Veteran was scheduled for a hearing before a Decision Review Officer in November 2018. However, the Veteran failed to appear. Moreover, he did not request a new hearing to be scheduled. Further, a December 2018 Report of General Information indicates that the Veteran did not want a Board hearing. As such, the Board finds that any prior hearing request has been withdrawn.

1. Entitlement to service connection for left temporal AVM is remanded.

The Veteran has asserted that his left temporal AVM is related to service, to include as secondary to his service-connected vertigo. Service treatment records consistently document ear pain and vertigo. Post-service, a February 2013 VA MRI showed an abnormal incident finding. The examiner indicated that the finding most likely represented an AVM, which is usually present since birth. In October 2014, the Veteran underwent surgery for the left temporal AVM.

The Veteran has not been afforded a VA examination to address whether the Veteran’s AVM is related to service, including the documented incidents of ear pain and vertigo, or secondary to his service-connected vertigo. Moreover, there is an indication that the Veteran’s AVM preexisted service as the MRI examiner noted that such are usually present from birth. However, it is unclear from the record whether the left temporal AVM is a developmental defect that was subject to a superimposed disease or injury in service or a disease of a congenital, developmental or familial origin that was aggravated in service. In light of the above, the Board finds that a VA examination is necessary to determine the etiology of the Veteran’s left temporal AVM.

Moreover, in light of the need to remand, additional VA clinical records dated from November 2018 to the present should be obtained.

2. Entitlement to service connection for tremors, right side, to include as secondary to AVM, is remanded.

As the Veteran is asserting entitlement to service connection as secondary to his left temporal AVM, the Board finds that this issue is inextricably intertwined with the resolution of the remanded AVM issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from November 2018 to the present.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left temporal AVM. The examiner should opine whether it is at least as likely as not that the Veteran’s left temporal AVM represents a developmental defect or a disease of a congenital, developmental, or familial origin.

If the examiner determines that the Veteran’s left temporal AVM is a developmental defect, the examiner should offer an opinion as to whether it is at least as likely as not that such was subject to a superimposed disease or injury in service (to include documentation of ear pain and vertigo), resulting in a current disability.

If the examiner determines that the Veteran’s left temporal AVM is a disease of a congenital, developmental, or familial origin, the examiner should state 1) whether such underwent an increase in severity (i.e., whether it was aggravated) during service; and 2) if it is found that such disability underwent an increase in service, state whether there is clear and unmistakable evidence that any increase in disability during service was due to the natural progress of the disease.

If the examiner determines that the Veteran’s left temporal AVM is not a developmental defect or a disease of a congenital, developmental or familiar origin, the examiner should offer an opinion as to whether it is at least as likely as not that such disability a) had its onset in, or is otherwise medically-related to the Veteran’s military service, to include documentation of ear pain and

vertigo; b) is proximately due to or aggravated by the service-connected vertigo.

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD J.N. Moats

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.