Citation Nr: 1124108 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-24 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for residuals of kidney stones. REPRESENTATION Veteran represented by: New York State Division of Veterans Affairs ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The evidence is not clear as to whether the Veteran has kidney stones and whether this disorder is related to any in-service incident. There is a further VA duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Service treatment records show that the Veteran was treated for kidney stones during service in August 1972. An abdominal ultrasound performed in October 2004 revealed that both kidneys were unremarkable. A November 2007 medical record noted a history of hyperucemia that had resolved. The Veteran has submitted a June 2010 statement from his physician, stating that the Veteran has been diagnosed with and treated for high uric acid levels, gout, and gout-related arthritis since 1999. The physician opined that "there is better than a 50/50 chance that these listed illnesses are related to the production of kidney stones during the [Veteran's] active duty." VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination is necessary to determine if the Veteran has a current disability that is related to his in-service kidney stones. Therefore, it is necessary to remand this claim to schedule the Veteran for a VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will ascertain if the Veteran has received any VA, non-VA, or other medical treatment for residuals of kidney stones that is not evidenced by the current record. The Veteran must be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC must then obtain these records and associate them with the claims folder. 2. After the passage of a reasonable amount of time, the RO/AMC will afford the Veteran the medical examinations detailed below, to be conducted by appropriately qualified physician(s), who will respond to the inquiries below. In all examinations, the following considerations will govern: a. The claims folder, and a copy of this remand, will be made available to the examiner(s) who must acknowledge such receipt and review in any report generated as a result of this remand. The examiner's attention is specifically called to the in-service treatment for left flank pain in March 1973; the Veteran being prescribed allopurinal for gout in June 1973; the July 1972 passing of a kidney stone and the September 1972 stone analysis showing "pure uric acid." b. The examiner(s) must conduct any appropriate interviews and clinical testing to respond to the inquiries. c. The examiner(s) must state the medical and factual basis or bases for any opinions rendered based on his or her clinical experience, medical expertise, and established medical principles, and with identification of the evidence of record. d. If the examiner finds he or she cannot provide a requested finding without resort to pure speculation, he must provide a complete rationale for any such opinion. He must indicate whether his or her inability to provide such an opinion is a result of such factors as: i) an intractable lack of sufficient factual information, (ii) a lack of sufficient specialization or expertise on his or her part, or (iii) a lack of sufficient knowledge or information in the medical community at large under the current state of the art of medical care and research. The examiner shall respond to the inquiry does the Veteran have a current disability that is etiologically related to his kidney stones in service? 3. Thereafter, the RO/AMC will review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. The RO/AMC must then readjudicate the claim of service connection for residuals of kidney stones, including consideration of all of the evidence of record. If any of the benefits sought on appeal remains denied, the Veteran and his representative will be furnished a supplemental statement of the case with reasons and bases for the decision. The Veteran and his representative will be then given an appropriate opportunity to respond thereto. The appellant 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. 2010). _________________________________________________ Vito A. Clementi 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) (2010).