Citation Nr: 1120405	
Decision Date: 05/25/11    Archive Date: 06/06/11

DOCKET NO.  09-19 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for lymphoma (Waldenstrom's macroglobulinemia), due to ionizing radiation.  

2.  Entitlement to service connection for chronic renal failure, claimed as kidney damage, secondary to service-connected malaria.  

3.  Entitlement to an increased (compensable) evaluation for malaria.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran, spouse and C. Bash, M.D.

ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel

INTRODUCTION


The Veteran had active service from December 1943 to March 1946.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision by the RO which denied the benefits sought on appeal.  A hearing before the undersigned member of the Board was held in Washington, DC in September 2009.  

In January 2010, the Board denied the Veteran's claims, and he appealed that decision to the United States Court of Appeals for Veterans Claims ("Court").  In January 2011, the Court granted a Joint Motion for Remand and vacated the January 2010 Board decision.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.  


REMAND

As a result of the Order of the Court, the Board has been directed to undertake action consistent with the Joint Motion for Remand.  

In the Joint Motion, it was noted that the Board had not suggested to the Veteran that he submit certain evidence into the record that had been discussed at the Board hearing.  Following the Joint Motion, however, that evidence, (documentation from by Dr. E. Sternglass) was forwarded to the Board by the Veteran.  As such, this aspect of the Joint Motion has been addressed.  

The Joint Motion also directed the VA to advise the Veteran he "could obtain and submit" evidence to support his assertion that he "had active malaria and ascertainable residuals of malaria."  While it is unclear why this had not been considered accomplished by means of the November 2007 Notice letter issued following the Veteran's August 2007 application of benefits, the terms of the Joint Motion are controlling for this case.  

Accordingly, this matter is remanded for the following:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)  

1.  The Veteran should be advised by letter that he should provide VA with any information or evidence that he has had a recurrence of malaria or that he has any ascertainable residuals of malaria.  Such evidence would include, but is not limited to, doctors reports, laboratory studies or any medical report showing treatment for any associated symptoms or ascertainable residuals since his discharge from service.  

2.  After the requested development has been completed, the case should be reviewed, any additional development should be accomplished as may become indicated, and the claims re-adjudicated.  If the benefits sought on appeal remain denied, the Veteran and representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.  

Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.  The Veteran has the right to submit additional evidence and argument on the matters 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. 2010).  




____________________________________________
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) (2010).