Citation Nr: A25035335 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241125-492308 DATE: April 16, 2025 REMANDED Entitlement to service connection for acute myeloid leukemia (previously claimed as polycythemia vera/leukemia) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2024 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In the November 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2024 AOJ decision on appeal. 38 C.F.R. 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to service connection for acute myeloid leukemia (previously claimed as polycythemia vera/leukemia), any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). The Board notes that although the November 2024 AOJ decision noted that the new evidence received was not relevant to the claim, the AOJ adjudicated the claim on the merits. As such, the Board accepts the AOJ's merits determination as an implicit favorable finding that there was new and relevant evidence received to readjudicate the claim. See generally 38 U.S.C. § 5104A (explaining that favorable findings are binding upon the Board absent clear and convincing evidence to the contrary); 38 C.F.R. § 3.104(c). In this case, one year from the date the AOJ mailed the notice of decision on appeal has not elapsed. Nonetheless, it is undisputed that the Veteran wishes to receive a decision in this matter as soon as possible. In response to the notice of the right to switch review dockets, the Veteran submitted a signed waiver in February 2025, indicating that he waives his right to select a different Board review option and requesting that his appeal be reviewed as soon as possible. See January 2025 BVA Letter; see also February 2025 Correspondence. His VA Form 10182 is not ambiguous as to what docket he selected. Additionally, the record to date does not reflect any intention to switch dockets. According, the Board concludes that in light of the Veteran's February 2025 waiver and request for the Board to adjudicate this case as soon as possible, it is not in the Veteran's best interest to further delay this matter. Entitlement to service connection for acute myeloid leukemia (previously claimed as polycythemia vera/leukemia) is remanded. The Veteran asserts that his acute myeloid leukemia is related to his active service based on his service in Vietnam and exposure to Agent Orange. See March 2023 VA Form 21-526EZ; see also January 2024 Appellate Brief. The Board cannot yet adjudicate the Veteran's claim for service connection because the AOJ committed a pre-decisional duty to assist error to ensure the record contained an adequate medical opinion with sufficient information to decide the claim. 38 C.F.R. § 20.802(a) (requiring the Board to remand for correction of an AOJ pre-decisional duty to assist error in the absence of the ability to grant in full); see generally 38 U.S.C. § 5103A(d)(2)(C); 38 C.F.R. § 3.159(c)(4); see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). Where VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr, supra. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As an initial matter, the Board notes that the November 2024 rating decision conceded the following favorable findings concerning the Veteran's claim: (1) the Veteran participated in a toxic risk exposure activity (TERA), based on the January 2024 TERA Memo and (2) VA medical records from Tulsa VA clinic confirm a current diagnosis of acute myeloid leukemia. No clear and unmistakable error has been shown by the evidence of record to rebut these favorable findings. See 38 C.F.R. § 3.104(c). A review of the record reveals that in March 2023 the Veteran submitted an article/document regarding the types of chronic myeloproliferative disorders (MPD), including chronic myelogenous leukemia, which can lead to acute leukemia. See March 2023 Correspondence at 5-7. The article notes that individuals with MPD have a gene mutation. Id. Further, it states "[y]ou aren't born with this mutation. It happens when you're an adult. Some theories are that having a virus or being around toxic chemicals or radiation can cause this to happen." Id. Additionally, the Veteran was afforded a VA examination in March 2024. The examiner noted that the Veteran had diagnoses of acute myeloid leukemia and myelodysplastic syndrome. See March 2024 C&P Exam: DBQ at 1. The examiner rendered a negative nexus opinion finding that there was no nexus between the Veteran's claimed condition and the conceded TERA or Agent Orange exposure. See March 2024 C&P Exam: Medical Opinion at 5. For his rationale the examiner noted "there is no medical or scientific evidence available that provides any indication of a relationship between the development of the condition(s) at issue and the TERA" and "AML, MDS is not presumptive of Agent Orange." Id. The examiner did not consider or discuss the article submitted by the Veteran suggesting a possible link between acute leukemia and exposure to toxic chemicals. Therefore, the opinion is inadequate for adjudication purposes. Under these circumstances, the Board finds that remand is warranted for correction of an AOJ error in satisfying a statutory duty to assist. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159, 20.802. Additionally, the AOJ will readjudicate the claim and consider all relevant evidence of record. 38 C.F.R. § 20.802 (c). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion, regarding the etiology of the Veteran's acute myeloid leukemia. The evidentiary record, including a copy of this remand and the article submitted by the Veteran in March 2023, must be made available to, and reviewed by the clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran (if deemed necessary by the reviewing clinician), the clinician must opine on: (a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed condition is etiologically related to service, to include the conceded TERA and Agent Orange exposure. In rendering the requested opinion(s), the examiner must consider the total potential exposure and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. Adequate reasons and bases for any opinion rendered must be provided. The claims file should be made available to the examiner, who should review the entire claims folder. If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lewis, Aliece M. 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.