Citation Nr: 1325734 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 03-16 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a Chiari malformation. REPRESENTATION Appellant represented by: Maxwell D. Kinman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1974 with service in the Army Reserve from October 1975 to January 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2005, the Board denied the claim for service connection for a Chiari malformation. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In July 2006, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which vacated and remanded the Board's January 2005 decision. The appeal was returned to the Board and remanded in October 2006, August 2007, April 2008, and September 2010 for further development. The Board denied the claim for service connection a second time in an April 2012 decision, and the Veteran again appealed the denial to the Court. In a November 2012 JMR, the parties agreed that additional development of the claim was necessary, and the Board's April 2012 decision was vacated and remanded. It has now once again returned to the Board. The Veteran testified before the undersigned Veterans Law Judge at the RO in March 2008. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board regrets further delay in this case, but finds that a remand is necessary to comply with the provisions of the November 2012 JMR. Specifically, a VA neurological examination and medical opinion are required under the duty to assist. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA neurological examination with an appropriate examiner other than the VA examiner who performed the March 2009 VA examination and provided addendum medical opinions in January 2011, March 2011, and December 2011. The claims file must be provided to and reviewed by the VA examiner. After review of the entire record, including the fact sheet from the National Institute of Neurological Disorders and Stroke (NINDS), the examiner should respond to the following: a) Identify any current symptoms/disorders that are at least as likely as not (50 percent or greater probability) related to the Arnold-Chiari malformation. b) Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's Arnold-Chiari malformation is a congenital defect? c) If it is not a congenital defect, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's Arnold-Chiari malformation is etiologically related to the Veteran's active duty service, to include the reported motor vehicle accident? d) If the Arnold-Chiari malformation is a congenital defect, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran incurred additional disability to the malformation during active service due to a superimposed disease or injury, to include the reported motor vehicle accident? A full rationale (i.e. basis) must be provided for all expressed opinions. The examiner's medical opinion MUST include discussion of the NINDS fact sheet which indicates that a type 1 Arnold-Chiari malformation can be acquired in certain instances, such as injury resulting in drainage of the spinal fluid. For the purposes of the requested medical opinions, the VA examiner should also accept as true the Veteran's reports that he was involved in an in-service motor vehicle accident. 2. After ensuring that all medical opinions provided by the VA examiner comply with the Board's remand instructions, readjudicate the claim on appeal. If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 Supp. 2012). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).