Citation Nr: 0826333 Decision Date: 08/05/08 Archive Date: 08/13/08 DOCKET NO. 01-04 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for human immunodeficiency virus (HIV). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from July 1985 to July 1991. This appeal arises January 2000 from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2005 the Board of Veterans' Appeals (Board) issued a decision denying the veteran's claim for service connection for HIV. The veteran appealed that decision to United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). The Court issued a decision in April 2007 which vacated the February 2005 decision of the Board and remanded the claim. The Board remanded the claim in December 2007 and ordered development consistent with that outlined in the Court's decision. The case has since been returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND There are several remaining areas in this case that still require development. It has been the veteran's long standing contention that during a ship wide screening for HIV, aboard the USS Flint, he tested positive. The veteran's service records show he served aboard the USS Flint from 11 February 1991 to 30 April 1991. They also show that on April 9, 1991, he underwent an HIV antibody test. The results, however, are not currently reflected in the evidence of record. The Board sought to obtain the results of this test in November 2002, directing that an inquiry be made to the National Personnel Records Center (NPRC). The response received was as follows: "Please use the proper request code for a clinical search." After the Court vacated the Board's decision, another request was sent to the NPRC. This was to a different address code and worded as follows: CLINICAL RECORDS, FURNISH ACTIVE DUTY INPATIENT CLINICAL RECORDS FOR <> FROM <<4/01/1991>> TO <<7/01/1991>> AT <>. The response received from NPRC in April 2008, was as follows: THE ALLEGATION HAS BEEN INVESTIGATED AND THE FOLLOWING RESULTS WERE FOUND: <> The undersigned considers this response from NPRC to be too ambiguous to conclude that the results of the test performed aboard the USS Flint are unavailable. It appears that the vocabulary used in the request for records has been confusing to those responsible for conducting the actual search. It would seem from the April 2008 response that "clinical" records are synonymous with records generated during a hospitalization, and since the veteran was not aboard a "Hospital Ship" there would be, by definition, no "clinical records" and the search was ended. If this is what occurred, that is not a satisfactory search. As such, yet another request for the results of the April 1991 HIV Antibody test performed on the veteran while he served aboard the USS Flint should be conducted as set out below. In addition to the foregoing, the evidence shows that in July 1996, the veteran sought an HIV test at the VA Orlando Outpatient Clinic. Other records suggest this request was made in connection with a Persian Gulf War Registry Examination. It does not appear that any effort was made to determine whether such a test was conducted at that time. This should be accomplished. Lastly, in its December 2007 Remand, the Board requested an examination of the veteran and an opinion as to whether the veteran contracted his HIV infection during service. The veteran was examined in this regard in May 2008. In the opinion provided, the examiner concluded the veteran's HIV was not a result of his military service. The rationale for the opinion, however, was simply that the veteran "did not indicate being HIV positive on his separation exam. He first started treatment for it in 1998." This response does not address the veteran's contention that he exhibited symptoms of HIV infection in service (e.g. flu like complaints) which went unrecognized as the early onset of HIV. A follow-up opinion that addresses this contention should be sought. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the NPRC, or other appropriate entity, and request copies of the documents reflecting the results of the HIV Antibody Test performed on the veteran on April 9, 1991 while he was assigned to the USS Flint. (Should this help in the search, the health record reflecting this test occurred shows the "COMMAND UIC" as 20113, and the "ROSTER #" as 91029.) If no such record showing the results of this HIV antibody test can be found, or no such record exists, a response to that effect should be provided. 2. The RO should attempt to obtain the result of any HIV test performed on the veteran at the Orlando VA Outpatient Clinic between July 1996 and September 1996, and which appears to have been requested in the context of a Persian Gulf War Registry examination conducted during that time frame. 3. The RO should refer the veteran's file to the examiner who authored the May 2008 VA examination report, for an addendum. After re-familiarizing himself with the veteran's record, the examiner should offer an opinion as to whether it is likely, unlikely or at least as likely as not, that any complaints or findings noted in the veteran's service medical records, in retrospect, reflect the onset or an early manifestation of HIV infection. If the examiner is not available, the matter should be referred to another for the opinion sought. 4. Thereafter, the RO should review the record and enter its determination. If the decision remains adverse, the veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further review. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).