Citation Nr: 0322190 Decision Date: 09/02/03 Archive Date: 09/08/03 DOCKET NO. 02-03 082 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a left nephrectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The veteran and his daughter ATTORNEY FOR THE BOARD L. Cryan, Counsel INTRODUCTION The veteran had active service from October 1942 to December 1945. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision by the RO. The veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge at the VA's San Antonio, Texas, office in January 2003. At the hearing, the veteran and his representative asserted that the issue on appeal should be considered an original claim of service connection for a left nephrectomy and not a claim to reopen based on new and material evidence. Upon a review of the claims folder, the Board agrees, and as such, the issue is as characterized above. The Board points out that a review of the record does not indicate that there was any claim of service connection for the left nephrectomy pending prior to the receipt of a March 2000 claim (i.e. the March 2000 claim of entitlement to service connection for the left nephrectomy was an original claim for compensation for this disability). REMAND The veteran and his representative contend, in substance, that the veteran's left nephrectomy is related to his military service. It is initially pointed out that the Veterans Claims Assistance Act of 2000 (hereinafter VCAA or the Act), Pub. L. No. 106-475, 114 Stat. 2096 (2000) and implementing regulations (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)) modified VA's duties to notify and assist claimants. 38 U.S.C.A. §§ 5103, 5103A, 5107(a) (West 2002); 38 C.F.R. § § 3.159(a)-(c) (2002). As noted above, the veteran had active service from October 1942 to December 1945. The evidence of record reflects that he underwent a left nephrectomy in 1971. In March 2000, the veteran submitted a claim of service connection for the left nephrectomy. The veteran asserts that he had urinary tract infections during and after service which ultimately led to the removal of his left kidney. Service medical records show that the veteran had several urinalyses, which the veteran contends were abnormal. For example, a November 1942 urinalysis noted that the veteran's urine was amber, cloudy with an acidic reaction. Microscopic evidence noted many sulfapyridine crystals. The veteran and his representative assert that these records showed abnormal urinalyses during service. The veteran was afforded a VA examination in January 2002. The examiner noted, based on a review of the service medical records, that the veteran's urinalysis report of November 1942 showed that the urine had no albumin and no sugar. The microscopic examination was negative. It did contain sulfapyridine crystals following his treatment for a hand infection at that time. The examiner also noted a second urinalysis done in June 1943 which reported that the veteran had triple phosphate crystals in his urine. The veteran reported current symptoms of mild difficulty in starting the urinary stream and nocturia three to four times per night. There was some frequency during the day, with some dribbling, but no burning. On examination of the abdomen, there was a 12-inch left renal scar extending around the left axillary line. There was no discomfort in the incision. There were no abnormalities associated with it, according to the veteran. Rectal examination revealed that the prostate was enlarged grade 2. The right lobe of the prostate was hard and larger than the left. Testes were bilaterally symmetrical and density was bilaterally the same. The diagnosis was that of enlarged prostate, grade 2, with hardness in the right lobe. With regard to genitourinary symptoms, the veteran did have frequency three to four times per night. The examiner opined, after reviewing the chart carefully, that the left nephrectomy of 1971 was not due to a condition that began in the service. The veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge in January 2003. The veteran reported that he had urinary tract infections during service and that he continued to have pain after service until the left kidney was removed. In April 2003, the veteran sent additional evidence directly to the Board with a signed waiver of RO review. The evidence contained an opinion from a private "neuro-radiologist", Craig N. Bash, M.D., who opined that the veteran's service- related urinary tract infections caused him to eventually develop his left staghorn calculi. The doctor further opined that the veteran would not have lost his left kidney had it not been for the formation of his service-related left side staghorn because he would have not needed surgery for his staghorn and he would likely therefore not have developed his intraoperative hemorrhage with necessitated his left nephrectomy in 1971. In light of the conflicting medical opinions regarding the circumstances leading up to the removal of the left kidney, the Board finds that the veteran should be reexamined and the examiner should render an opinion, based on all of the evidence obtained in the claims file, as well as evidence gathered at the examination, as to whether it is at least as likely as not that the veteran's left nephrectomy resulted from urinary tract infections and/or other kidney-related problems that had their onset during service. In this regard, the examiner should determine if the urinalyses from 1942 and 1943 were abnormal. Accordingly, and keeping in mind that dictates of the VCAA of 2000, the case is REMANDED to the regional office (RO) for the following action: 1. The veteran should also be afforded VA genitourinary examination in order that an opinion can be obtained as to whether there is any link between the left nephrectomy and the events in military service, including any urinary tract infections. It is requested that, prior to rendering such opinion, the examiner conduct a thorough review of the record, obtain a detailed history of symptoms from the veteran, and conduct any special testing necessary. Rationale to support such opinion, whether favorable or not, should be set forth. The examiner should also specifically comment on the validity of the VA opinion from January 2002 as well as Dr. Bash's opinion of April 2003. 2. The RO then should undertake any other development it determines is required under 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2002). 3. Following completion of the development requested hereinabove, the RO must undertake a de novo review of the claim of service connection for a left nephrectomy based on the evidentiary record in its entirety. The RO in this regard must ensure that all notification and development action required by the VCAA is completed. If any benefit sought on appeal remains denied, then the veteran and his representative should be provided with a SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is further informed, but he may furnish additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.