Citation Nr: A21020236 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210504-157424 DATE: December 17, 2021 REMANDED Entitlement to service connection for multiple sclerosis (MS) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1967 to May 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from April 2021 Appeals Modernization Act (AMA) rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (NOD), the Veteran elected the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Veteran also requested review of the issue of entitlement to service connection for prostate cancer in his May 2021 NOD. The AOJ granted the claim in a May 2021 rating decision. As this award represents a full grant of the benefits sought on appeal, the claim is no longer before the Board. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran's appeal has been advanced on the docket. 38 C.F.R. § 20.902. Entitlement to service connection for MS For the reasons that follow, the Board finds that there was a pre-decisional duty to assist error and a remand is required. 38 C.F.R. § 20.802(a). In this regard, on his December 2020 VA Form 21-526EZ, the Veteran asserted that his MS is related to chemical exposure during active service from firefighters' foam. The Veteran's military occupational specialty (MOS) was electrician. The Veteran's private treatment records show a "remote history of [MS]." Further, a May 2021 rating decision included a favorable finding that the May 2021 examination showed a diagnosis of multiple sclerosis with a residual of erectile dysfunction. 38 C.F.R. § 20.801(a) (Any findings favorable to the claimant as identified by the AOJ in notification of a decision on an issue on appeal are binding on Board adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding). Based on the foregoing, the Board finds that the low threshold of McLendon was met prior to the April 2021 rating decision on appeal and the Veteran should have been afforded a VA examination to determine whether his MS is related to his active military service, prior to the rating decision on appeal. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Board notes that the evidence of record includes a May 2021 VA examination that cannot be considered in this instant appeal. However, the AMA does not prevent the Board from considering argument. Significantly, the Veteran's representative contends that the May 2021 VA medical opinion did not review pertinent medical literature and challenged the competency of the examiner. See November 2021 Written Brief Presentation; Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). As the Board may not consider the May 2021 VA examination in this appeal and is nevertheless remanding for an examination, the challenge is moot. The appeal is remanded for a VA examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a qualified clinician to determine the nature and etiology of his MS. The claims file and a copy of this remand must be made available and reviewed by the examiner. The VA examiner should respond to the following inquiries: Whether it is it at least as likely as not that MS (1) began during active service, (2) manifested within seven years after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss all pertinent evidence of record, to include the arguments offered by the Veteran's representative and the Veteran's statements regarding his military occupation and chemical exposure to firefighters' foam. A. Odya-Weis Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.