Citation Nr: A25041202 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240820-466198 DATE: May 6, 2025 REMANDED Entitlement to service connection for cervical strain is remanded. Entitlement to service connection for Chiari malformation (brain-spinal condition) is remanded. Entitlement to service connection for dizziness is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to August 1991 and from January 1995 to February 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2024. In February 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a January 2024 decision. In June 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior January 2024 decision. In the August 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 January 2024 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. Any evidence submitted after the January 2024 AOJ decision cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding these claims, 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). The Board notes that in the Veteran's September 2023 VA Form 21-526EZ, the Veteran listed the following issues: degenerative arthritis, cervical strain, Gulf War Veteran with diagnosed illness as qualifying chronic disability, and Gulf War Veteran with unexplained chronic multi-symptom illness. The Board has not found evidence that the Veteran served in the Persian Gulf during her time in service. Further, the AOJ characterized the issues as Chiari malformation, cervical strain, and dizziness, but did not adjudicate that issue of degenerative arthritis in the January 2024 rating decision. Therefore, the Board cannot adjudicate the issue of degenerative arthritis. The Veteran may resubmit the claim to the AOJ or notify the AOJ that the issue is still pending. Finally, the Board is aware that less than one year has elapsed since the appealed rating decision was issued, and the Veteran has a right to switch appeal dockets during that one-year period. However, the Board views the Veteran's submissions as reflecting an intent to have this matter reviewed in an expeditious manner and has found this to be an implicit waiver of the right to change appeal dockets under Williams v. McDonough, 537 Vet. App. 305 (2024). Entitlement to service connection for cervical strain, Chiari malformation, and dizziness The Veteran is seeking service connection for cervical strain, Chiari malformation, and dizziness. Regrettably, the Board finds that a remand is necessary to correct a pre-decisional duty to assist error by the AOJ. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Once VA undertakes the effort to provide an examination or medical opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran underwent VA examinations for cranial nerve diseases and neck (cervical spine) in November 2023. The Veteran was diagnosed with Chiari malformation and dizziness in these examinations but not cervical strain. In the cranial nerve examination report, the examiner noted that the condition began in 1995 due to wear and tear during the Veteran's service and when the condition began, symptoms were headaches, dizziness, and neck pain which have increased over the years. The examiner noted that the current symptoms are more frequent and last longer and dizziness and headaches get worse with coughing and physical activity. In the cervical spine examination report, the examiner noted that the condition began during active service due to wear and tear from military training, and the symptoms are numbness and tingling and pins and needles radiating to the back of head and neck. For the cervical strain, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness as there is no pathology to warrant a diagnosis. For the Chiari malformation, the examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, because as noted in literature, Chiari malformation is often congenital, making it less than likely related to military service. For dizziness, the examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, because research suggests that dizziness can be found in patients with Chiari malformation. The examiner found that service treatment records (STRs) in 1995 note reports of lightheadedness and headache on the Veteran's first day of basic training, which could mean the condition was preexisting prior to military service. The Board finds these medical opinions inadequate and finds additional development is needed prior to adjudication of the issues on appeal. First, in reviewing the STRs, the Board found complaints of cervical spine strain from an accident in October 1989. Further, STRs also note cervical spine injury, tenderness, dizziness from February 1995. The Board finds that the VA examiner did not consider this evidence when formulating the medical opinions. Additionally, clarification is needed as to whether dizziness is a separate disability or a manifestation of the Chiari malformation or cervical strain as the examiner described it as a symptom of the Chiari malformation and cervical strain in several parts of the examinations, but also listed it as a separate diagnosis on the cranial nerve examination. Finally, the Board notes that for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. For the Chari malformation, while the examiner noted that it could be a congenital condition, the examiner did not answer subsequent related questions that are necessary. As such, the Board finds these medical opinions inadequate, and further action is needed. Accordingly, the matters are REMANDED for the following action: Schedule the Veteran for VA examinations and obtain new VA medical opinions to determine the nature and etiology of the Veteran's cervical strain, Chiari malformation, and dizziness. The claims file must be reviewed by the examiner. Following review of the claims file, including this REMAND, the examiner must provide opinions that respond to the following, with a rationale provided: 1. Whether it is at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's cervical strain, Chiari malformation, and dizziness manifested during service; or are otherwise related to an event, injury, or disease incurred during active service. 2. The examiner should clarify whether dizziness is a separate disability of in-service onset or a manifestation of the Chiari malformation and/or cervical strain. 3. The examiner should state whether the Veteran's Chiari malformation is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") (a) If the Chiari malformation is a congenital defect, the examiner should state whether there is evidence of a superimposed disease or injury during service. (b) If the Veteran's Chiari malformation is a congenital disease, the examiner should state whether the disease preexisted the Veteran's military service. If so, the examiner should state whether it is clear and unmistakable that the Veteran's condition was not aggravated in service? The examiner should determine whether 1) it is clear and unmistakable that there was no increase during service, or 2) that it is clear and unmistakable that any increase in disability was due to the natural progression of the pre-existing condition. (c) If the Veteran's Chiari malformation is not congenital and/or did not preexist service, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology therein. In providing responses, the examiner must consider the Veteran's in-service cervical spine injury and complaints of cervical spine tenderness and dizziness from October 1989 and February 1995, along with any other complaints or treatments for these conditions during service. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Khan, Associate Counsel 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.