Citation Nr: 1736585	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-23 969	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for human immunodeficiency virus (HIV).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

P. Poindexter, Associate Counsel 


INTRODUCTION

The appellant is a Veteran who served on active duty from March 1985 to January 1994, with subsequent National Guard service.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Cleveland, Ohio Department of Veteran Affairs (VA) Regional Office (RO).  The Veteran's record is now in the jurisdiction of the Muskogee, Oklahoma RO.  In May 2016, a videoconference hearing was held before the undersigned; a transcript is associated with the record.  In June 2016 this matter was remanded for further development.

[The Veteran had also appealed a denial of a total disability rating based on individual unemployability due to service connected disabilities (TDIU).  A February 2017 rating decision granted TDIU, effective May 20, 2011.  Accordingly, that matter is resolved, and no longer on appeal.]  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Because there has not been substantial compliance with prior remand instructions, another remand for development of medical evidence is necessary.  

In the June 2016 remand the Board, in pertinent part, requested that the Veteran's record be forwarded to an infectious diseases physician for review and an advisory medical opinion regarding the etiology of the Veteran's HIV.  The Board noted that the private medical opinion submitted was inadequate for rating purposes because it was based on an inaccurate factual premise (that the Veteran was not tested for HIV at separation, when in fact the record shows that HIV testing on service separation examination was negative), but that the remainder of the rationale for the opinion (that the incubation period for HIV places infection in service) cites a relevant factor for consideration (and presents a medical question).  The Board requested that the rationale for the opinion offered should discuss the length of the postservice interval (from discharge from active duty to the initial clinical documentation of HIV) and discuss the incubation period for HIV (to enable informed consideration of the private medical opinion submitted in support of the Veteran/s claim)  The September 2016 medical opinion received in response to the Board's remand request is conclusory, does not include discussion of the incubation period for HIV infection, and inadequate for rating purposes.  The consulting osteopath opined that the Veteran's HIV was less likely than not incurred in service, citing that the diagnosis was made more than a year after his separation from service; the provider did not, as was requested, discuss the incubation period for HIV that was cited in the rationale for the May 2016 private provider's opinion submitted in support of the Veteran's claim.  Accordingly, a remand for corrective action (an addendum medical advisory opinion) is necessary.

The case is REMANDED for the following:

1.  The AOJ should arrange for the Veteran's record to be forwarded to an infectious diseases (or other appropriate) physician for review and an advisory medical opinion regarding the likely etiology of his HIV.  Based on a review of the record (to include this remand) the consulting physician should opine whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's HIV was contracted during his active duty service.  

The opinion should include rationale (with citation to supporting factual data/medical literature, as deemed appropriate).  The provider should comment on the May 2016 private provider's opinion, specifically discussing the length of the interval between the Veteran's separation from service and his initial diagnosis of positive HIV and that the incubation period for HIV places his infection during active service). 
2.  The AOJ should then review the record and readjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the appellant and his representative opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


_________________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).
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