Citation Nr: 1805654	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  08-27 173	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to a compensable evaluation for histoplasmosis under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6844.


REPRESENTATION

Veteran represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. S. Mahoney, Associate Counsel 

INTRODUCTION

The Veteran served on active duty in the United States Army from February 1959 to September 1960.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In July 2010, the Veteran presented testimony before the undersigned Veterans Law Judge.

In February 2014, the Board remanded the claim for development.  In January 2015, the Board denied the Veteran's claim.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2015, the Court issued an order granting a Joint Motion for Remand (JMR), vacating the Board's decision and remanding the case back to the Board.  

The Board thereafter remanded the issue on appeal for further development in March 2016, and denied the Veteran's claim in February 2017.  The Veteran appealed that decision to the Court.  In an October 2017 Order, pursuant to a September 2017 JMR filed by the parties, the Court vacated and remanded the portion of the February 2017 decision finding that the Veteran was not entitled to a rating under 38 C.F.R. § 4.97, DC 6844 (post-surgical residual (lobectomy, pneumonectomy, etc.)) back to the Board.  The parties did not disturb the portion of the Board's decision denying a compensable rating under 38 C.F.R. § 4.97, DC 6834 (histoplasmosis of lung).  Thus, the issue has been recharacterized as reflected on the title page.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

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

The Board initially finds that it has jurisdiction to consider the Veteran's entitlement to a rating under 38 C.F.R. § 4.97, DC 6844, as the Veteran had a wedge resection in service related to his service-connected histoplasmosis.  However, remand is necessary, as the AOJ has not considered the applicability of this DC in rating the Veteran's histoplasmosis over the entirety of appeal period.  Specifically, while the AOJ addressed the criteria of DC 6844 in the August 2008 Statement of the Case (SOC), it did not address its applicability to the relevant evidence considered in the 2009, 2014 or 2016 Supplemental SOCs.  Thus, as it would be prejudicial to the Veteran to proceed at this time without initial AOJ consideration of the post-SOC evidence under DC 6844, remand is necessary.  Any outstanding records should also be secured.

Accordingly, the case is REMANDED for the following action:

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

1. Obtain all outstanding VA treatment records.

2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records.

3. Then after taking any additional development deemed necessary, readjudicate the claim for a compensable evaluation for histoplasmosis under 38 C.F.R. § 4.97, DC 6844, considering all relevant evidence since the August 2008 SOC. 

If the benefit sought on appeal remains denied, issue a Supplemental SOC and provide an opportunity for response before returning the case to the Board.

The Veteran 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. §§ 5109B, 7112 (2012).



_________________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).