Citation Nr: 0814972 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 03-33 413 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for kidney damage. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from September 1967 to October 1972. This appeal arises from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to 38 U.S.C.A. § 1151 compensation benefits for impotence, penile scarring, and kidney damage claimed to be the result of VA medical treatment provided in February and March 2001. In a written communication dated in December 2005, the veteran subsequently withdrew the claim for penile scarring. In April 2005 and again in October 2006, the Board remanded the veteran's case for evidentiary and procedural development. Such development having been accomplished, the appeal has been returned to the Board for further appellate review. In June 2007, the RO granted entitlement to 38 U.S.C.A. § 1151 benefits for erectile dysfunction and special monthly compensation based on loss of use of a creative organ; disabilities stemming from the same medical treatment upon which the instant claim is based. The veteran has not expressed disagreement with either the disability ratings or the effective dates assigned. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Unfortunately, the appeal must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action on his part is required. REMAND The veteran seeks 38 U.S.C.A. § 1151 compensation benefits for kidney damage he contends is related to surgical treatment received at a VA medical center. A VA examination was performed in April 2007. Review of the report of this examination, however, reveals it references both "renal insufficiency at times" and "stable renal function since March 2001." A threshold requirement for the grant of VA compensation for any disability is that the disability claimed must be shown present. 38 U.S.C.A. § 1151 (West 2002). Therefore, to address the apparent inconsistency in the April 2007 report, the veteran should be provided with a VA examination and all appropriate testing, to determine whether he, in fact, continues to experience any renal insufficiency currently. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA examination by a physician with appropriate expertise to identify any current pathology involving the kidneys. The claims folder must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. IF any current disability involving the veteran's kidneys is identified, the examiner is requested to render an opinion as to whether such disability is related to the VA surgeries and antibiotic treatment which the veteran underwent in early 2001. 2. After the development requested above has been completed, the RO should again review the entire record. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ 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) (2007).