Citation Nr: 23001077 Decision Date: 01/06/23 Archive Date: 01/06/23 DOCKET NO. 19-23 772 DATE: January 6, 2023 REMANDED Entitlement to service connection for inclusion body myositis is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1964 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The August 2018 rating decision was issued under the legacy system and the Veteran submitted a timely notice of disagreement. In October 2022, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). The Veteran opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a November 2022 VA Form 10182, Decision Review Request: Board Appeal, identifying the October 2022 SSOC. Therefore, the October 2022 SSOC is the decision on appeal. In the November 2022 VA Form 10182 the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the October 2022 SSOC, as well as any evidence submitted by the Veteran her representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The appeal was last remanded by the Board in May 2021 for additional development. Regrettably, more development is still necessary. The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to service connection for inclusion body myositis is remanded. The Veteran contends that he was exposed to trichloroethylene (TCE) during service and that his inclusion body myositis is etiologically related to his in-service TCE exposure. The Board last remanded this claim in May 2021 to attempt to verify the Veteran's in-service exposure to TCE. Additional records were added to the Veteran's claims' file in April 2021 providing descriptions of the Veteran's military specialties. These records did not address whether the Veteran was exposed to TCE during service and no other records have been identified that would be able to verify whether or not the Veteran was exposed to TCE during service. A March 2021 private opinion was provided in favor of the Veteran's claim for inclusion body myositis based on the Veteran's claimed in-service exposure to TCE. This opinion did not address the decades long gap between the Veteran's separation from service in July 1968 until his diagnosis in approximately 2017. Moreover, the private examiner did not consider the Veteran's post-service hobby of working on motorcycles. The issue of entitlement to service connection for inclusion body myositis is remanded to correct a duty to assist error that occurred prior to the October 2022 decision on appeal. The AOJ obtained April 2018 and May 2019 medical opinions prior to the October 2022 decision on appeal. However, these medical opinions do not provide an adequate rationale regarding whether the Veteran's inclusion body myositis is etiologically related to claimed TCE exposure during service. The Board finds that remand is warranted to obtain a VA opinion addressing this contention. On remand, the VA examiner should address the March 2021 private opinion as well as August 2013 and February 2018 VA treatment records indicating that the Veteran repaired motorcycles as a hobby. By this remand, the Board makes no determination, express or implied, concerning the credibility of the Veteran's statements and contentions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule a VA examination, if necessary, to determine the nature and etiology of the Veteran's inclusion body myositis. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's inclusion body myositis is causally or etiologically related to his military service, to include his claimed exposure to TCE? (Continued on the next page) In providing an opinion, the VA examiner should address the March 2021 private opinion. The VA examiner should also address August 2013 and February 2018 VA treatment records indicating that the Veteran worked on motorcycles as a hobby. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, 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.