Citation Nr: 1312414 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-15 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for multiple myeloma. REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney at Law ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from November 1965 to November 1967. The issue on appeal was most recently before the Board in March 2012. The veteran appealed the Board's March 2012 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated November 9, 2012, the Court vacated the Board's March 2012 denial and remanded this matter to the Board for compliance with the instructions included in the November 2012 Joint Motion for Remand. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Joint Motion addressed the need for further development as well as the need for a Board hearing. Although a Board hearing is normally scheduled first in recognition of the possibility that information may be presented which might require a remand, in the instant case the Veteran's counsel has specifically argued that VA should obtain military records described by the Veteran prior to scheduling a VA examination and Board hearing. The Veteran is claiming service connection for multiple myeloma. One contention is that he had service in Vietnam which would require application of the presumption of service connection for certain disease, such as multiple myeloma. Although there is no service verification now in the file showing Vietnam service, the Veteran alleges such service as part of his participation in "special operations." He has submitted completed Special Operations Forces Incidents (SOFI) forms that were received in February 2010 and February 2013. To comply with the directives of the Joint Remand, appropriate action to develop such evidence is necessary. The Joint Remand also directs further VA examination. In August 2010, the Board remanded the claim for a VA medical opinion. In response, a VA examiner in September 2010 provided a list of seven risk factors of multiple myeloma and recognized that some studies suggested that those working in certain petroleum related industries may be at a higher risk for myeloma (which is not a widely accepted risk factor) and acknowledged the Veteran worked in an engine room during service. The VA examiner concluded that whether the Veteran's service contributed to the subsequent development of myeloma is a matter of speculation. An additional opinion from the examiner was requested. In a November 2011 addendum, the VA examiner opined that multiple myeloma was less likely as not related to the Veteran's service, and the rationale remained the same (i.e. not a well accepted risk factor). As pointed out in the Joint Remand, the VA examiner did not provide an adequate opinion as to whether the Veteran's multiple myeloma is causally related to service (including chemical fume exposure and asbestos exposure). Thus, another opinion should be obtained. The Joint Remand also addressed the need for a VA Board hearing to afford due process. As noted above, the Veteran's representative has reiterated the need for such a hearing and specifically argued that the hearing should be held after the duty to assist development. Accordingly, the case is REMANDED for the following actions: 1. RO should take appropriate action to request verification of Special Operations reported by the Veteran. The SOFI received in February 2010 and February 2013 should be forwarded with the requests for verification pursuant to Fast Letter 09-52 and provisions set forth in M21-1MR, Part IV, Subpart ii. The requests and responses should be clearly documented for the record. Appropriate follow-up action should be taken as necessary to exhaust all avenues for obtaining verification. 2. If, (after completion of the above ) the benefit sought by the Veteran is not granted, the Veteran should be scheduled for an appropriate VA examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that multiple myeloma is causally related to such service, including chemical fume exposure and asbestos exposure? A detailed rationale should be provided, to include specific discussion of the Veteran's duties in service and risk factors for multiple myeloma. 3. In the interest of avoiding further remand, the RO should review the addendum or new opinion to ensure that it is expressly responsive to the posed question and supported by reasons for the opinion. 4. If, after completion of the above, the benefit sought by the Veteran is not granted, then the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. 5. The Veteran should then be scheduled for a Board hearing at the RO (either Travel Board or video as the Veteran may request). After the hearing is conducted, or in the event the Veteran cancels the hearing or fails to report without good cause, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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 Supp. 2012). _________________________________________________ ALAN S. PEEVY 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).