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).