Citation Nr: 1324535 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 01-07 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for pulmonary tuberculosis. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his two sisters ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from January 1958 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma, which denied the benefit sought on appeal on the basis that new and material evidence had not been submitted to reopen the claim which had previously been denied in December 1992. In December 2002, the Board concluded that new and material evidence had been submitted to reopen the Veteran's claim for service connection for pulmonary tuberculosis, and the issue was remanded for further development. The issue was again remanded for further development in October 2003. In a decision dated in August 2005, the Board denied service connection for pulmonary tuberculosis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in an Order dated in March 2007, the Court granted a Joint Motion for Remand vacating the Board's decision, and remanding it to the Board for compliance with the instructions in the Joint Motion. In October 2007 and August 2009, the Board remanded the case for further evidentiary development. In a decision dated in July 2010, the Board denied service connection for pulmonary tuberculosis. The Veteran appealed that decision to the Court, and in a February 2012 Memorandum Decision, the Court vacated the July 2010 decision, remanding the case for re-adjudication in compliance with directives specified in its decision. The Board remanded the case to the RO again in October 2012 to comply with the Court remand. As discussed below, the RO did not fully complete the remand prior to returning the case to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The Board has reviewed the Virtual file, and there currently are no documents in the Virtual file whatsoever. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The October 2012 Board remand instructed the RO to obtain the necessary authorization from the Veteran so the RO could contact J. Brendan O'Keefe, MD, in Seminole, Oklahoma; and, Thomas W. Atkinson, MD, in Fayetteville, AR, and seek clarification from those physicians as instructed. In November 2012 correspondence, the RO contacted the Veteran and asked for the appropriate release of information on the private physicians, and the Veteran did not respond. This was noted in a February 2013 Supplemental Statement of the Case (SSOC). However, both the November 2012 RO letter and the February 2013 SSOC were sent to an address different from the one the Veteran has used on other occasions, to include the address he noted on a Form for his congressman, and the one noted in his VA outpatient records. While further delay is regrettable, the case must again be remanded to ensure the RO uses the correct address. Accordingly, the case is REMANDED for the following action: 1. The RO will take appropriate steps to ensure the Veteran's most recent address of record is used. An August 2012 request to his congressman shows his address as: 100 South Pioneer Circle, Apt. 7; Tishomingo, OK 73460. 2. After the above is complete, and after obtaining the necessary authorization from the Veteran, the RO shall contact J. Brendan O'Keefe, MD, in Seminole, Oklahoma, and seek clarification as to the following August 2000 medical opinion: "Patient entered service in 1958 [and] was in San Diego where he developed tuberculosis. Patient was in hospital in March of 1958 for treatment of tuberculosis." (a) In rendering the opinion, were the Veteran's service treatment records reviewed? (b) In rendering the opinion, were any post-service treatment records of the Veteran dated prior to the 1990's reviewed? (c) In rendering the opinion, was there any documented evidence of a diagnosis or manifestations suggestive of tuberculosis of the Veteran in 1958? (d) Do you have any additional medical records of the Veteran regarding treatment for tuberculosis at any time dated from 1958 to the present? If so, kindly provide such records so that they may be associated with his claims file. 3. After obtaining the necessary authorization from the Veteran, the RO shall contact Thomas W. Atkinson, MD, in Fayetteville, AR, and seek clarification as to the following December 2001 medical opinion: "I have reviewed medical records from 1958 when this patient was first admitted to the service until the year 2000. By the chart, this patient was diagnosed with tuberculosis in 1958 and by a document from Mrs. Rothchild dated 12/05/01, she has found Naval personnel records in NPRC St. Louis. . . . There is a record of his being treated in California for active tuberculosis in 1958. Pending the receipt of these records... I will assume the patient had active tuberculosis in 1958." (a) In rendering the opinion, were the Veteran's service treatment records reviewed? (b) In rendering the opinion, was there any documented evidence of a diagnosis of tuberculosis of the Veteran in 1958? (c) Were any records ever received from any source, to include Ms. Murphy, demonstrating that the Veteran had active tuberculosis in 1958? (d) Do you have any additional medical records of the Veteran regarding treatment for tuberculosis at any time dated from 1958 to the present? If so, kindly provide such records so that they may be associated with his claims file. 4. The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it shall be undertaken prior to further claim adjudication. 5. After all of the above is complete, the RO will then re-adjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided with a SSOC. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ ERIC S. LEBOFF 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) (2012).