Citation Nr: 21023194 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-35 816 Did DATE: April 20, 2021 REMANDED Entitlement to service connection for myelodysplastic syndrome (MDS) to include essential thrombocythemia (ET) is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from July 1968 to March 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. In a November 2019 Board decision, the Veteran’s claim for a higher rating for his back disability was granted to 40 percent, and the claims for service connection for a left knee condition, right leg condition, and MDS with ET were remanded. Thereafter, in an October 2020 rating decision, the claims for service connection for the left knee condition and right leg condition were granted. As such, these issues are no longer on appeal before the Board, though he is within the one-year timeframe to file a disagreement with the decision if he so desires. As for the MDS/ET claim, the 2019 remand directives instructed the RO that the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required and must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. However, the RO failed to follow this directive and rather, scheduled an examination with a VA physician’s assistant. As such, VA has not substantially complied with the remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). This is discussed further below. The Veteran has other appeals pending before the Board as well. The issues for an increased rating and earlier effective date for service-connected radiculopathy of the left upper extremity; earlier effective date for increased rating for PTSD, and increased rating and earlier effective date for headaches as residuals of TBI are all part of different appeal stream that is currently pending, and will be decided at a later date in docket order. In a March 2021 letter, the Veteran’s attorney requested a status update as to claims of entitlement to service connection for residuals of TBI/head injury (gait, coordination, balance, vertigo), neurogenic bladder, seizures, sexual dysfunction, speech problems, bilateral hearing loss, and alteration of sense of smell and taste. Upon review of the file, the Board notes that subsequent to the March 2020 statement of the case on these issues, the Veteran and his attorney did not submit a substantive appeal (VA Form 9) for these claims. The May 2020 VA Form 9 listed other specific issues being appealed (the ones identified in the above paragraph), and did not include these other issues. As noted above, in the 2019 Board remand, the RO was instructed to obtain an advisory opinion from an independent medical expert and follow its established procedures for requesting an advisory opinion for the myelodysplastic syndrome and essential thrombocythemia claims, furnished by a medical school, university, or clinic. Rather, a September 2020 VA examination was obtained but this examination does not adhere to the specific remand instructions, especially because it was provided by a physician’s assistant, when the Board clearly stated the issue at hand is medically complex and requires an expert opinion. Substantial compliance with the Board’s previous remand directives must be obtained prior to adjudication of the Veteran’s claim. Consequently, a remand is necessary to fully develop his claim and obtain an independent medical expert that complies with the November 2019 Remand directives. The matters are REMANDED for the following action: 1. Obtain an advisory medical opinion from an independent medical expert (IME) regarding the myelodysplastic syndrome (MDS) and essential thrombocythemia (ET). The RO must follow its established procedures for requesting an advisory opinion from an appropriate expert at a medical school, university, or clinic. The request shall be submitted through the Veterans Service Center Manager or Pension Management Center Manager of the office having jurisdiction over the claim, and shall be referred to the Compensation Service or the Pension and Fiduciary Service for approval. 38 C.F.R. § 3.328(c)(1)(ii). When requesting the opinion, the RO should forward all pertinent records, particularly including all available doctor visits and reports as to his MDS and treatment, to the examiner. The examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s MDS and ET is etiologically related to his active duty service, to include his service in Vietnam, and his various alleged chemical and/or herbicide exposures. It is not sufficient to rely on the fact that MDS and ET is not included on the list of diseases associated with exposure to herbicide agents and/or chemicals. Rather, the physician should discuss this particular Veteran’s disease and medical history and apply medical principles/scientific evidence to the facts of his particular case, and note the various articles and studies submitted that indicated certain chemicals and radiation exposure can cause MDS/ET. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. 2. Provide the Veteran and his attorney a copy of the opinion received, if appropriate. 38 C.F.R. § 3.328(d). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.