Citation Nr: 1315027 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-34 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for multiple myeloma. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to May 1991, including service in the Persian Gulf War. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2011, the Board remanded the claim for additional development and adjudicative action. The case was returned to the Board for further appellate review. In a May 2012 decision, the Board, in pertinent part, denied the claim on the merits. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By order dated October 2012, the Court granted a Joint Motion for Remand (JMR), vacated the May 2012 Board decision for denial of service connection for multiple myeloma, and remanded the case for compliance with the terms of the joint motion. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. REMAND In the May 2012 decision, the Board determined that service connection was not warranted for multiple myeloma based on the determination that there was no competent and credible evidence establishing a nexus between the Veteran's current multiple myeloma disability and service, nor did it have onset during service or within one year of separation from service. In the October 2012 Joint Motion for Remand, the Court determined that the Board erred by not explaining why clarification of the December 2008 VA medical opinion was not warranted, specifically regarding whether the Veteran's exposure to chemicals in service caused his multiple myeloma. It was explained that the Board's rejection of this evidence without seeking clarification or adequately explaining why such clarification was unnecessary frustrates appellate review. Thus, the Board should seek clarification of the December 2008 opinion or provide a statement explaining its decision not to seek further clarification. To ensure compliance with the Court's Order and after review of the evidentiary record, the Board finds that additional development is necessary under the duty to assist. 38 C.F.R. § 3.159(c)(4). Specifically, clarification of the December 2008 opinion is warranted because it relates to the unestablished element of a nexus between the claimed disorder on appeal and service. Accordingly, to avoid further litigation in this mater, the case is REMANDED for the following actions: 1. Furnish the Veteran's entire claims file, including a copy of this remand and the October 2012 Joint Motion for Remand, to the VA health care provider who prepared the December 2008 VA medical opinion (or a suitable substitute if that VA physician is unavailable). The health care provider must review all pertinent evidence of record and prepare an addendum opinion clarifying whether it is at least as likely as not (50 percent probability or more) that the Veteran's exposure to chemicals in service caused his current multiple myeloma. An examination of the Veteran is not required. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the heath care provider should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. A review of the Court's Joint Motion may be helpful to the health care provider in understanding the requirements of the Veterans Court in this case. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have 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 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). ____________________________________________ JOHN J. CROWLEY 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).