Citation Nr: 0813782 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-11 067 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for bladder and kidney condition. 2. Entitlement to service connection for claimed bladder and kidney condition. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to October 1969 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the RO. The veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO in August 2007. The veteran's claim was the subject of previous decisions. The Board has a legal duty to address the "new and material evidence" requirement under 38 C.F.R. § 3.156(a) regardless of the actions of the RO. If the Board finds that new and material evidence has been submitted, it is bound by a statutory mandate to consider the merits of the case. Barnett v. Brown, 8 Vet.App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The now reopened claim of service connection for bladder and kidney condition is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The additional evidence presented since a March 1995 decision of the RO relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been submitted to reopen the claim of service connection for bladder and kidney condition. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. VCAA has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. This change in the law is applicable to all claims filed on or after the date of enactment of VCAA, or filed before the date of enactment and not yet final as of that date. Given that the action taken hereinbelow is fully favorable to the veteran, no further assistance in developing the facts pertinent to this limited matter is required at this time. Generally, a final rating decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), the revised provisions of which are effective in this case because the veteran's claim was received subsequent to August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decision makers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." In this case, the claim of service connection for a bladder and kidney condition was denied in a rating decision of the RO in March 1995. In the March 1995 rating decision, the RO determined that a bladder and kidney condition was neither incurred in nor caused by service. The veteran applied to reopen the claim in March 2006. Since the March 1995 decision is final under 38 U.S.C.A. § 7104(a), the Board must first ascertain whether new and material evidence has been received to reopen the claim. Since that decision, the veteran has submitted a photo copy of a prescription for Septra DS dated in February 1981. Also submitted, was a September 1995 VA treatment record indicating an abdominal ultrasound was normal except for a small stone overlying the lower pole of the left kidney. Additionally, VA treatment records dated in September 1999 to April 2006 are replete with references to the veteran's history of kidney stones. Also submitted, was the transcript of the veteran's testimony in the August 2007. The veteran testified generally about the onset of his symptoms in service and their continuity since that time. This additional evidence is new, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been submitted to reopen the claim of service connection for bladder and kidney condition. ORDER As new and material evidence has been submitted to reopen the claim of service connection for bladder and kidney condition, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND At the outset, the Board notes that VA regulations provide that VA will make as many requests as are necessary to obtain relevant records, such as service medical records or VA treatment records, from a Federal department or agency. See 38 C.F.R. § 3.159(c)(2). The record indicates that the RO has not obtained and reviewed a complete set of the veteran's treatment records before adjudicating the issue on appeal. Additionally, the Board notes that the RO has not obtained and reviewed records of his treatment by VA in Philadelphia. Thus, any outstanding records should be obtained and associated with the claims file. Having reopened the claim of service connection for bladder and kidney condition, additional development is necessary with respect to that claim. During service, the veteran was seen for what was diagnosed as venereal warts in July 1969. Subsequent service records are negative for complaints, findings or treatment for a related disorder. Subsequent to service, VA treatment records dated February 1994 to April 2006 contain references to findings of and treatment for bladder and kidney condition. In an August 1994 treatment record, an intravenous urogram demonstrated an 8mm stone overlying the lower pole of the left kidney. Kidney and bladder examination was otherwise normal. In a September 1995 VA treatment record, an ultrasound of the abdomen was normal except for a small stone overlying the lower pole of the left kidney. Remaining treatment records note a history of kidney stones. In his August 2006 Notice of Disagreement and March 2007 Substantive Appeal, the veteran reported that he was treated for a bladder condition at the Phan Rang Air Force Base hospital in the summer of 1969. During his August 2007 hearing, the veteran testified that he began having problems with urinary discharge in service. He was told that he had gonorrhea and prescribed penicillin pills for treatment. The problem did not resolve, and he was flown to the Phan Rang Air Base hospital. He was checked for kidney and bladder infections. The veteran testified that the condition persisted after his discharge from service and a private doctor diagnosed him with cystitis. He also received treatment from VA in Philadelphia in the late 1970's for this persisting condition. The veteran also reported having treatment for a urinary condition when he first moved to Florida in the early 1980's. Despite the veteran's in-service and post-service symptomatology, he has not been afforded a VA examination to date to ascertain the nature, extent, and etiology of his claimed bladder and kidney condition. Thus, the Board finds that such an examination is "necessary under 38 U.S.C.A. § 5103A. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, indication the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. The Court further held that types of evidence that "indicate" a current disability may be associated with service include medical evidence that suggest a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Accordingly, the case is REMANDED to the RO for the following action: 1. A letter should be sent to the veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2005), the need for additional evidence regarding his claim. The letter must inform the veteran about the information and evidence that is necessary to substantiate the claim, notify him of the type of evidence that VA will seek to provide, inform him of the type of evidence that he is expected to provide, and request that he provide any and all relevant evidence currently in his possession. The veteran also should be notified that, in cases where service connection is granted, both a disability evaluation and an effective date for that evaluation will be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should take appropriate steps to contact the veteran in order to have him provide information referable to all treatment received for the claimed bladder and kidney condition since service. Based on the response, the RO should undertake all indicated action to obtain copies of all clinical records from any identified treatment source. The veteran should also be informed that he can submit evidence to support his claim. 4. The veteran should be afforded a VA examination to determine the nature, extent and likely etiology of the claimed bladder and kidney condition. The veteran's claims file must be made available to the examiner for review in conjunction with the evaluation. All studies deemed necessary should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner must opine as to whether the veteran has a current bladder and kidney condition that at least as likely as not (e.g., a 50 percent or greater likelihood) had its clinical onset during his period of active service. A complete rationale must be given for all opinions and conclusions expressed in a typewritten report. 5. After completion of the above development, the veteran's claim of service connection for bladder and kidney condition should be readjudicated. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Thereafter, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on the matter or 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. 2007). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs