Citation Nr: 21012141 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-29 240 DATE: March 3, 2021 REMANDED Entitlement to service connection for multiple sclerosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1988 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the Board during a hearing in June 2019. A transcript of the hearing is associated with the claims file. The Veterans Law Judge who presided over the hearing is no longer employed by the Board. Ordinarily, the Veteran would be given an opportunity to attend an additional Board hearing before a different officiant. However, in December 2020, the Veteran’s attorney submitted a letter in which he stated that the Veteran did not want another hearing in this matter. Accordingly, the Board finds that another hearing is not indicated. In October 2019, the Board denied the claim of entitlement to service connection for multiple sclerosis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand in which the parties agreed that the Board erred in failing to consider whether a VA examination was necessary to decide the claim and whether the lay evidence was sufficient to establish the claim under 38 C.F.R. § 3.303(d). The matter has now returned to the Board for adjudication. 1. Entitlement to service connection for multiple sclerosis is remanded. The Board finds that remand for a VA examination is necessary. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran has asserted that his symptoms of multiple sclerosis began during service or had onset within the seven-year presumptive period for a chronic disorder. 38 C.F.R. §§ 3.307, 3.309. For example, he testified that he began experiencing symptoms including dizziness and headache pain after returning from Iraq in April 1991, and that he believed that these symptoms were manifestations of multiple sclerosis. Thus, the Board finds that remand for a VA examination is required to consider the question of an etiological relationship between military service and the Veteran’s multiple sclerosis, and whether the disorder had its onset during or within seven years of separation from service. In remanding this matter, the Board makes no findings as to the credibility of the lay evidence provided by the Veteran or any other party. Such findings will be made when (or if) this matter returns to the Board. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The matter is REMANDED for the following action: 1. Please schedule the Veteran for a VA examination to determine the nature and etiology of his diagnosed multiple sclerosis. The examiner is asked to review the claims file and to opine on the following: (a) Is it at least as likely as not that the Veteran’s multiple sclerosis had its onset during or is otherwise etiologically related to military service? (b) Is it at least as likely as not that the Veteran’s multiple sclerosis had its onset as a chronic disease entity within seven years of the Veteran’s separation from active duty service? A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: • The Veteran’s hearing testimony in June 2019 • Lay Statements from the Veteran’s brother (D.J.); his current wife (S.J.); his ex-wife (S.G.); and a service buddy (J.R.) all received in June 2019. • The contentions raised by the Veteran’s attorney in the appellate brief received in December 2020, including that there is “ample evidence” that the Veteran’s multiple sclerosis had its onset within seven years of discharge from military service • VA medical records showing treatment for multiple sclerosis The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that it is as medically sound to find in favor of the proposition as it is to find against. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.