Citation Nr: 21004886 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-16 314 DATE: January 28, 2021 REMANDED Entitlement to service connection for multiple myeloma, associated with claimed in-service injuries, is remanded. REASONS FOR REMAND The Veteran served on active duty as a U.S. Army trainee from September 17, 1975 to November 6, 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. Discussion The Veteran contends that multiple myeloma of the lumbar spine was incurred in, or aggravated by, service. More specifically, the Veteran testified that he fell down a mountain and later fell from a top bunk in service that led to immediate hospitalization, chronic spine pain, and—as the pain progressed multiple myeloma. See, e.g., November 13, 2020 Hearing Transcript, pp. 6-9. (incorrectly identified as “Correspondence”). In December 2013, the Board denied service connection for a low back disability. The Board acknowledged the Veteran’s report of a marching injury and fall from a bunk while in service in 1975 but noted that the reports of onset of chronic back pain in the records were not consistent. The Board reviewed records up to the date of the decision including records of Social Security Administration (SSA) examination and adjudication of disability benefits. The Board also placed probative weight on a VA medical opinion that found that the current disability was not caused by the events in service. At that time, bone cancer was not mentioned in the record. In March 2014, the Veteran filed the current claim for service connection for bone cancer of the lower back. In August 2014, the RO denied service connection on the merits without reference to the previous Board decision addressing a chronic lumbar spine disability prior to the evidence of cancer. In a January 2015 Memorandum Decision, the U.S. Court of Appeals for Veterans Claims (Court) affirmed the Board decision, noting that the Veteran reported the diagnosis of bone cancer in service for the first time in his brief to the Court. The Court found that was inconsistent with a previous report of a diagnosis of cancer in 2013. Thus, the Court acknowledged that the low back disability now included bone cancer; but affirmed the Board decision that the events in service did not cause the current disability. The Board acknowledges that bone cancer is a different diagnosis although it affects the spine with the potential of metastasis. Therefore, resolving all doubt in favor of the Veteran and for the purposes of this remand only, the Board must revisit the events in service and post-service treatment to adjudicate the cancer disability. However, the Board makes no finding whether the falls in service occurred or whether the 2013 decision that they did not cause a back disability should be revised or reversed. The Veteran’s STRs fail to disclose the reported accidents; however, the Veteran testified that his back pain has been present from 1975. A January 1975 enlistment physical examination showed a normal spine. An October 1975 x-ray was obtained to investigate a possible avulsion of the adductor muscle. Routine views of the pelvis failed to show any pathological changes. The Veteran received an honorable discharge but the reason for discharge after only a portion of recruit training is not shown. Therefore, a request for the service personnel records is warranted as they may also contain evidence of hospitalization for the Veteran’s reported injuries. The Veteran testified that he received treatment after service from private chiropractic treatment, private medical treatment, and VA treatment. Of this VA treatment, the Veteran testified that a Dr. Levine at the Miami, Florida Veterans Affairs Medical Center (VAMC) performed surgery and treated the Veteran in July 2014 and conveyed “after [s]he cut [the Veteran’s] lower back [that he has] multiple myeloma and it’s service connected.” See id. at p. 13. The SSA adjudicator referred to a June 2011 report by Dr. Levine that did not mention surgery. Upon review of the Veteran’s extensive VA treatment records and VA progress note, a September 27, 2016 assessment discloses that the Veteran was diagnosed with multiple myeloma 4 years earlier. This assessment also reveals that Dr. Spector was treating the Veteran at the Palm Beach VAMC. In fact, the record includes a letter from Dr. Spector, dated September 9, 2014, in which this Palm Beach VAMC hematologist-oncologist wrote that, [The Veteran] has [a] diagnosis of active multiple myeloma. […] [The Veteran] is currently on oral chemotherapy. […] [The Veteran’s] life expectancy is five is to 10 years. See March 31, 2015 Medical Treatment Record—Government Facility. There is no evidence to include etiology from Dr. Levine at the Miami VAMC nor indications that such VAMC records have been sought with specificity. However, upon review of the Veteran’s Social Security Administration (SSA) records, a pleading from the Veteran’s former counsel discloses that Dr. Levine., at the Miami VAMC, stated in June 2011 that pushing and pulling is affected in both upper and lower extremities due to ischemic heart disease. Dr. Levine is quoted as stating that the Veteran can never climb, balance, or crawl due to chronic back pain and heart disease. See SSA Medical Records, pp. 21-22. (incorrectly identified as “STR-Medical”). SSA did not indicate whether Dr. Levine was either a VA or private clinician. Dr. Levine’s Miami VAMC treatment records and/or progress notes addressing the Veteran’s multiple myeloma and its etiology, if any, have not been associated with the Veteran’s claims file. There is no indication that the RO has sought earlier Miami VAMC records through a process consistent with 38 U.S.C. § 5103A(c)(1)(C). And, if Dr. Levine is in fact a private clinician, there is no indication that the RO sought private treatment records related to treatment for multiple myeloma consistent with 38 U.S.C. § 5103A(b)(2)(B). The matter is REMANDED for the following action: 1. Contact the Veteran and his representative to determine Dr. Levine’s status (as either a VA clinician or a private clinician). If Dr. Levine is found to be a private clinician, prepare authorization for release of treatment records and have them signed by the Veteran. 2. Request service personnel records and any additional records of medical care including hospitalization of the Veteran while in recruit training at Fort Jackson, South Carolina in September to November 1975. 3. Obtain Miami VAMC records prior to August 2014 or any other VA treatment records prior to February 2009. All efforts should be undertaken until said medical records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C). 4. Should it be the case that Dr. Levine is a private clinician, the RO must make two attempts to obtain these relevant records unless the first attempt demonstrates that further attempts would be futile. a. Should the RO determine that more than one attempt to obtain these relevant records would be futile, the RO must delineate the steps that have been taken and explain, with specificity, why any further attempts to obtain these relevant records would be futile. b. Should these private treatment records not be obtained, the RO must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 5. Only if the Veteran’s service personnel records and any additional records of medical care including hospitalization of the Veteran while in recruit training at Fort Jackson, South Carolina in September to November 1975, disclose that the Veteran sustained a spinal injury, the Board requests the following: a. Arrange for a VA opinion with an appropriate clinician with expertise in orthopedics and oncology. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. b. Upon completion of a review of the evidence, the clinician is asked to render opinions as to the following inquiries: Whether it is at least as likely as not (50 percent probability or more) that the current multiple myeloma was incurred in, aggravated by, any incidence in service? AND Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current multiple myeloma was proximately caused by, aggravated beyond its natural progression, or otherwise etiologically related to, in-service spine/back injuries? (continued next page) For all opinions, complete rationales should be provided. The clinician should reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. The Veteran reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.