MULTIPLE MYELOMA

A. C. MACKENZIE · 2026 · Case ID: A26034542

MIXED

Summary

The Veteran served in the United States Army from November 1987 to July 1994, including service in Southwest Asia from August 1990 to July 1991. The Veteran appealed the denial of service connection for multiple myeloma and plasmacytoma. The Board found that service connection for multiple myeloma was granted, citing a favorable finding from a subsequent agency of original jurisdiction (AOJ) decision that the Board was bound by, despite the AOJ's procedural issues. For plasmacytoma, the Board remanded the claim due to an inadequate VA medical opinion. The original VA examiner used an incorrect legal standard for causation, suggesting certainty was required rather than the "at least as likely as not" standard. The examiner also failed to consider burn pit exposure and did not address whether plasmacytoma was a separate disability or a manifestation of multiple myeloma. The remand instructions require a new VA opinion to address the nature and etiology of the plasmacytoma, its relationship to multiple myeloma, and its service connection, considering the "at least as likely as not" standard, potential synergistic effects of toxic exposures including burn pits, and relevant medical literature and lay statements.

Rationale

Favorable finding from AOJ decision is binding on the Board; AOJ granted service connection for multiple myeloma

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210209-134099

Full Decision Text

Citation Nr: A26034542
Decision Date: 04/14/26 Archive Date: 04/14/26

DOCKET NO. 210209-134099
DATE: April 14, 2026

ORDER

Entitlement to service connection for multiple myeloma is granted.

REMANDED

Entitlement to service connection for plasmacytoma is remanded.

FINDING OF FACT

In June 2023, the AOJ granted the Veteran's claim for entitlement to service connection for multiple myeloma.

CONCLUSION OF LAW

The criteria for entitlement to service connection for multiple myeloma are met.?38?U.S.C. §§?1110, 1111, 1112, 1153, 1154, 5107; 38?C.F.R. §§?3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Army from November 1987 to July 1994, with verified service in Southwest Asia from August 1990 to July 1991.?

In August 2019, the Department of Veterans Affairs (VA) agency of original?jurisdiction?(AOJ) issued a Statement of the Case (SOC) for the separate issues of entitlement to service connection for multiple myeloma and plasmacytoma. The Veteran filed an intent to file application on March 27, 2020, and a subsequent August 2020 supplemental claim to reopen the prior legacy SOC in the Appeals Modernization Act (AMA) for both issues. Thereafter, in a November 2020 rating decision, the AOJ denied the claim as to both issues, and such cis the rating decision on appeal. As such constitutes an initial decision; therefore, the AMA applies. SOC, Receipt Date: August 31, 2019; Intent to File, Receipt Date: March 27, 2020; VA 20-0995, Receipt Date: August 31, 2020; Rating Decision, Receipt Date: November 23, 2020.?

In a February VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. However, in June 2021, the Veteran timely exercised a valid docket election change from Direct Review to Hearing Submission docket as to both issues, and a hearing was held before the undersigned Veterans Law Judge on September 30, 2024.?See?VA Forms 10182, Receipt Dates: February 9, 2021; June 22, 2021; Hearing Transcript, Receipt Date: September 30, 2024. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the November 2020 AOJ decision on appeal, as well as any evidence?submitted?by the Veteran or their attorney at the September 2024 hearing, or within 90 days following said hearing. 38 C.F.R. §?20.302(a).?

Pursuant to the AMA, the Board may not consider evidence: (1) submitted after the November 23, 2020, AOJ decision on appeal and before the September 30, 2024, hearing; or (2) submitted over 90 days following the September 30, 2024, hearing. 38 C.F.R. §?20.302(a). If evidence was added to the claims file during a period when such additional evidence was not allowed, the Board has not considered such in its decision. 38 C.F.R. § 20.300. If the Veteran wishes VA to consider any such evidence that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify such evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims and consider the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The three-element test for service connection requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during active service. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010).

Entitlement to
al Claim are included with this decision.

Service Connection

Entitlement to service connection for multiple myeloma.

As a general matter, within one year of the date the AOJ issues a rating decision, a claimant may elect one of three review options, or lanes: (i) Higher-Level Review by the AOJ; (ii) Supplemental Claim; or (iii) appeal to the Board. 38 U.S.C. § 5104C (a)(1). If a request for review under one of these three lanes is pending final adjudication, a claimant may not file a request for review under a different lane without first withdrawing the pending review request. See 38 U.S.C. § 5104C (a)(2)(A); 38 C.F.R. § 3.2500 (b), 20.205.

Notably, the Veteran submitted a supplemental claim for entitlement to service connection for multiple myeloma and plasmacytoma which was received in January 2023. VA Form 20-0995, Receipt Date: January 18, 2023. The VA received the supplemental claim after the Veteran filed his VA Form 10182, and for which a rating decision deferring adjudication for both issues was issued in March 2023. See Rating Decision, Receipt Date: March 18, 2023.

Even though here the Veteran filed a supplemental claim over a year after the prior rating decision was issued, the Veteran's filing of a supplemental claim after his election via a VA Form 10182 constitutes an impermissible concurrent election under the AMA because the supplemental claim concerned the same issues appealed in the VA Form 10182, while the VA Form 10182 had not been withdrawn and was pending final adjudication. 38 U.S.C. § 5104C(a)(2); 38 C.F.R. § 3.2500(b).

Thereafter, a supplemental rating decision was issued in June 2023, wherein the AOJ granted entitlement to service connection for multiple myeloma, at 100 percent disabling from August 10, 2022. Rating Decision, Receipt Date: June 17, 2023.

Here, the Board docketed the Veteran's appeal with regard to the issue of entitlement to service connection for multiple myeloma, and thereafter, the AOJ adjudicated the impermissible concurrent election in the form of a supplemental claim, which resulted in a grant of that claimed issue. Although the AOJ's grant of service connection was based on evidence the Board cannot consider under the AMA, the favorable findings in the June 2023 rating decision are not evidence but are binding on the Board; therefore, given such favorable findings, entitlement to service-connection for multiple myeloma is granted in full. 38 U.S.C. § 5104A.

REASONS FOR REMAND

Entitlement to service connection for plasmacytoma.

In September 2020, the Veteran was provided with a pertinent VA examination and medical opinion regarding the etiology of his plasmacytoma. Unfortunately, the Board finds that the September 2020 VA medical opinion is inadequate in so far as the VA examiner used the incorrect legal standard for causation. Specifically, the VA examiner suggested that in order to support a claim for service connection, peer-reviewed medical literature would have to suggest that the Veteran's plasmacytoma was caused by a purported in-service exposure. Instead, the legal standard, is "at least as likely as not," which means that evidence would need to be in approximate balance, not, as suggested by the VA examiner, 100 percent certain, and not even "more likely than not." To this point, contrary to the VA examiner's opinion, the Board finds that the abstract cited by the Veteran entitled "Mitochondrial Dysfunction in Gulf War illness Revealed by 31 Phosphorus Magnetic Resonance Spectroscopy" need not show a "causative etiology" but rather an indication that the Gulf War veterans in the study experienced mitochondrial damage at a far greater rate than the control group. Finally, the VA examiner did not consider the Veteran's burn pit exposure in their assessment
, the legal standard, is "at least as likely as not," which means that evidence would need to be in approximate balance, not, as suggested by the VA examiner, 100 percent certain, and not even "more likely than not." To this point, contrary to the VA examiner's opinion, the Board finds that the abstract cited by the Veteran entitled "Mitochondrial Dysfunction in Gulf War illness Revealed by 31 Phosphorus Magnetic Resonance Spectroscopy" need not show a "causative etiology" but rather an indication that the Gulf War veterans in the study experienced mitochondrial damage at a far greater rate than the control group. Finally, the VA examiner did not consider the Veteran's burn pit exposure in their assessment of the Veteran's toxic exposures. Compensation & Pension (C&P) Examination, Receipt Date: September 29, 2020.

VA regulations stipulate that the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Therefore, and with respect to the Veteran's diagnosed plasmacytoma, it is unclear whether such is a separately diagnosable disability, or a precursor or symptom or residual attributable to the Veteran's now service-connected multiple myeloma. Therefore, a VA medical opinion is also necessary to determine the same.

For the foregoing reasons, the absence of an adequate VA medical opinion for the Veteran's diagnosed plasmacytoma disability constitutes a pre-decisional duty to assist error, and remand is thus necessary to correct the same. Barr v. Nicholson, 21?Vet. App.?303, 311 (2007).?

The matter is REMANDED for the following action:

Forward the record, to include a copy of this Remand, to an appropriate examiner for an opinion addressing the nature and etiology of the Veteran's diagnosed plasmacytoma. The record, to include a copy of this Remand, must be made available to the examiner, and based on a review of the record, and after obtaining a thorough and complete history from the Veteran, the examiner should render opinions as to the following:

(a.) Does the Veteran's plasmacytoma diagnosis reflect a separately diagnosable disability, or is it a symptom, residual, precursor, or other manifestation of disease related to the Veteran's multiple myeloma? Please comment on the Veteran's relevant private treatment records and how such relate to your findings.

(b.) If the plasmacytoma is found to be a separate disability, is it at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's plasmacytoma had its onset during service or was otherwise caused by active service; or is related to an in-service injury, event, or disease, including to the synergistic effects of the Veteran's TERA, to include burn pit exposure, chemical weapons, and/or PB pills during the Veteran's deployment in Operation Desert Storm. Please include a discussion of the medical abstract "Mitochondrial Dysfunction in Gulf War illness Revealed by 31 Phosphorus Magnetic Resonance Spectroscopy," which was submitted by the Veteran as evidence, as well as the Veteran's lay statements.

The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is approximately balanced such that it is as medically sound to find in favor of causation as it is to find against it.

All opinions offered must be accompanied by a clear, non-conclusory rationale consistent with the evidence of record, to include a discussion of medical facts specific to the Veteran's history.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Akkerman, Shayna R.

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.

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