Citation Nr: 1301502 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-34 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a kidney disability, to include focal segmental glomerulosclerosis with renal failure. 2. Entitlement to an increased rating for gastroesophageal reflux disease (GERD), status post hiatal hernia, evaluated as noncompensable prior to October 14, 2008, and as 30 percent disabling since October 14, 2008. REPRESENTATION Veteran represented by: Michael Tonder, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from May 1989 to May 1999 and was honorably discharged from that period of service. The Veteran had a second period of active duty from February 2002 to April 2007, and received a bad conduct discharge. In a November 2007 administration decision, the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, determined that the character of such discharge was a bar to the receipt of VA benefits from that period of service. See 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12 (2012). The matters, as noted on the title page, come to the Board of Veterans' Appeals (Board) on appeal following November 2007 and February 2008 rating decisions of the St. Petersburg RO. In particular, in the November 2007 rating decision, the RO denied the Veteran's claim for service connection for a kidney disability. In December 2010, the Veteran testified concerning that issue at a Board hearing at the RO. In February 2011 and December 2011, the Board remanded the matter for additional evidentiary development. In April 2012, the Board received a VA Form 21-22a (Appointment of Individual as Claimant's Representative) in which the Veteran granted a power-of-attorney in favor of Michael Tonder, Attorney. The Board also notes that in November 2012, additional evidence was received from the Veteran and his attorney in support of the claim of service connection for a kidney disability, to include focal segmental glomerulosclerosis with renal failure. The Veteran waived initial consideration of the evidence by the agency of original jurisdiction (AOJ). As such, the evidence has been accepted for inclusion into the record on appeal. Additionally, at that time, the Veteran's attorney requested a Board hearing. In January 2013, the Veteran's attorney submitted additional medical evidence and again waived initial consideration of the evidence by the AOJ. This evidence has also been accepted for inclusion into the record on appeal. Additionally, the Veteran's attorney notified the Board that the Veteran no longer wished a supplemental Board hearing and wished to withdraw his hearing request. As will be discussed in further detail below, this appeal is being REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Kidney Disability The Veteran contends that although his kidney disability was diagnosed during his second period of service, service connection is nonetheless warranted as his kidney disability actually had its inception during his first period of active service. In support of his claim, the Veteran points to service treatment records corresponding to his first period of active duty documenting genitourinary complaints, as well as complaints of abdominal and back pain. The Veteran contends that these symptoms are indicative of the onset of his kidney disability during his first period of active duty. VA regulations reflect that service connection may be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). With regard to the Veteran's claim, a VA medical opinion was obtained in March 2011. In the Board's December 2011 remand, it was noted that the VA examiner who had provided the opinion had ultimately concluded that the Veteran's kidney disability did not have its onset during his first period of active service. The Board found the rationale provided by the examiner to support the opinion to be unclear. In this regard, the examiner had opined that the Veteran's kidney disability had not had its onset during the Veteran's first period of active service as it had not been diagnosed therein. The examiner also opined that the Veteran's kidney disability was not causally related to or the result of the Veteran's documented genitourinary complaints, as well as complaints of abdominal and back pain during his first period of active service. The Board found troubling, however, that the examiner did not address whether the Veteran's complaints and symptoms may have represented the onset of the Veteran's kidney disability. Otherwise, in the Board's December 2011 remand it was noted that the Veteran had submitted a September 2011 letter from a private physician, a nephrologist, speculating as to the date of onset of the Veteran's focal segmental glomerulosclerosis. In particular, the nephrologist stated, "I am certain that the [the Veteran's] renal disease started well before the diagnosis was made with the renal biopsy and certainly pre-dated the urinalysis that was performed in March 2003, which showed 300 mg/dl of protein." The nephrologist otherwise stated that the Veteran's kidney disability began in the weeks, months or years preceding the Veteran's treatment. As a result of the opinions from both the VA examiner in March 2011 and the private nephrologist in September 2011, an additional VA opinion, from a specialist in nephrology, was requested by the Board. In the Board's remand instructions, the examiner was requested to provide supporting rationale for any opinion provided. In particular, the examiner was asked to address the Veteran's contentions that genitourinary complaints, as well as complaints of back pain and abdominal pain documented during his first period of active duty were indicative of the onset of the Veteran's kidney disability. In a May 2012 disability benefits questionnaire (DBQ), the VA examiner, a nephrologist, opined that the Veteran's kidney disability had had its onset during his second period of service. (As noted previously, the Veteran received a bad conduct discharge for his second period of service resulting in a bar to VA benefits for that period). Furthermore, the examiner opined, "[The Veteran] also had genitourinary complaint, back and abdominal pain documented during his first period of active duty between [May 1998] and [May 1999] which is less likely than not to indicate the onset of his kidney disability in 2003[.]" The rationale for the examiner's conclusion, that the Veteran's complaints during his first period of service did not represent the onset of his kidney disorder, was not provided. The Appeals Management Center (AMC) subsequently requested a clarification of the examiner's May 2012 opinion. In its clarification opinion request, the AMC asked that the examiner provide additional rationale as well as comment on the evidence from the private nephrologist who had authored the September 2011 letter. In an August 2012 DBQ, the examiner provided a favorable medical opinion relating the Veteran's kidney disability to his first period of service; however, the opinion was based on the examiner's misreading of the medical evidence. In light of this fact, the AMC requested an additional opinion. In a September 2012 DBQ, the above VA examiner opined, Back pain in 1996 and abdominal pain [in] 1992 or GU complaint in 1989 were not likely to be the cause of renal failure requiring hemodialysis in late 2003. Rationale: Renal biopsy in March 2003 showed [i]diopathic focal glumerulosclerosis [sic] resulting in end-stage ranal [sic] disease requiring hedodialysis [sic] in late 2003. As noted above, the Veteran submitted additional evidence for consideration in November 2012. This evidence included an October 2012 statement from an osteopathic physician (D.O.) who worked in the same medical group as the Veteran's private nephrologist. The osteopathic physician noted that although the time when the Veteran's renal insufficiency began was uncertain, a realistic estimate would be sometime in 1990. No rationale or explanation for the osteopathic physician's opinion was provided. The evidence submitted by the Veteran also included a follow up letter from his private nephrologist (the author of the September 2011 letter), also dated in October 2012. In particular, the nephrologist noted the following, Based on the natural progression of FSGS [focal segmental glomerulosclerosis], I suspect with very high likelihood-greater than 50% certainty-that his FSGS began much earlier than the time that he had his biopsy, and certainly could have started during the time period for which he was seen for flank pain and abnormal urinalysis. The nephrologist went on to report that the natural progression of FSGS occurred over the course of 6-8 years from the diagnosis of proteinuria to initiation of dialysis. He added that a thorough laboratory workout between 1989 and 1999 (the Veteran's first period of service) had, unfortunately, not been performed. In the present case, as noted above, the VA examiner's opinion in May 2012 does not provide a thorough explanation for the conclusion that the Veteran's physical complaints and symptoms during his first period of service did not represent the onset of his kidney disorder. This is also true for the examiner's September 2012 opinion. The rationale for the examiner's opinion is especially important in light of the opinions from the Veteran's private clinicians, in particular, the Veteran's treating nephrologist. In this regard, although the VA examiner may have reviewed the September 2011 letter from the private nephrologist, there is a lack of any comment or discussion by the examiner regarding the private nephrologist's conclusions concerning the Veteran's kidney disability. As noted above, the nephrologist has provided an additional opinion which the examiner has not had an opportunity to consider. The Board notes that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008), citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Regrettably, the claims folders should be returned to the VA examiner who provided the May 2012 and September 2012 medical opinions for an additional addendum opinion. In particular, it is imperative that the examiner provide the rationale and/or explanation for why the Veteran's genitourinary complaints, as well as complaints of back pain and abdominal pain documented during his first period of active duty, did not represent the onset of the Veteran's current kidney disability. In doing so, the examiner should also address the September 2011 and October 2012 letters from the Veteran's private nephrologist and from his osteopathic physician speculating on the onset of the Veteran's kidney disability. If the VA examiner who provided the May 2012 and September 2012 opinions is not available to provide an addendum opinion, make arrangements for the file to be reviewed by another examiner who should be requested to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination and the necessary opinion requested.) With regard to requesting an addendum medical opinion, the Board acknowledges the United States Court of Appeals for Veterans Claims (Court) holding that it is not permissible for VA to undertake additional development if the purpose of that development is to obtain evidence against an appellant's case. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003); Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). The Court, however, later distinguished Mariano, holding that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Finally, the Veteran should be provided an opportunity to supplement the record on appeal with any relevant VA or private treatment records associated with his claim for service connection for a kidney disability, to include focal segmental glomerulosclerosis with renal failure. The Board notes that the most recent VA medical records associated with the claims folders (to include the Veteran's Virtual VA electronic file) are dated no later than March 2012. The records reflect the Veteran's treatment predominantly at the VA community based outpatient clinic (CBOC) at Eglin Air Force Base, Florida. GERD, Status Post Hiatal Hernia The Board notes that in a February 2008 rating decision, the RO denied the Veteran a compensable rating for his service-connected GERD, status post hiatal hernia. In April 2008 the RO received a statement from the Veteran, forwarded from the Board, in which the Veteran noted his disagreement with the February 2008 rating decision. (See Volume 3 of the claims folders.) No action appears to have been taken in response to the Veteran's notice of disagreement (NOD) based on the Board's review of the claims folders and the Virtual VA electronic file. In October 2008, the Veteran filed an increased rating for his service-connected GERD, status post hiatal hernia. In an April 2009 rating decision, the RO increased the Veteran's disability rating from noncompensable to 30 percent, effective October 14, 2008. The Board notes that the Veteran is rated for his service-connected GERD, status post hiatal hernia under Diagnostic Code 7346 for hiatal hernia. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). The highest available rating under Diagnostic Code 7346 is 60 percent. In this case, the Veteran has filed a valid and timely NOD with the RO's February 2008 denial of his claim for a compensable rating for service-connected GERD, status post hiatal hernia. A statement of the case (SOC) has not been issued in response to the Veteran's NOD. Thus, a remand of the claim is necessary to accord the RO an opportunity to issue an SOC and to accord the Veteran an opportunity to perfect an appeal of this issue. 38 C.F.R. § 19.9(c) (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issue should be returned to the Board if, after issuance of an SOC, the Veteran perfects a timely appeal of the claim by filing of a timely substantive appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) (For the benefit of the examiner providing the addendum VA medical opinion, as discussed below in paragraph 2, the AOJ should not remove the Board's tabs in the claims folders.) 1. Request that the Veteran identify any private or VA treatment he may have received for his claim on appeal for service connection for a kidney disability, to include focal segmental glomerulosclerosis with renal failure. After obtaining the appropriate release of information forms (where necessary), procure records of any treatment the Veteran has received. The most recent VA records, associated with the Veteran's treatment at the Eglin CBOC are dated no later than March 2012. Records since this time should be sought. If any other records identified by the Veteran are not available, the Veteran should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e) (2012). 2. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), the claims folders should be referred to the VA examiner who provided the May 2012 and September 2012 medical opinions. The examiner should offer an addendum medical opinion based on a thorough review of the evidence of record. A copy of this remand must be made available to the examiner for review in connection with the requested opinion. It is important that the examiner review the September 2011and October 2012 letters from the Veteran's private nephrologist and from his osteopathic physician (noted in the body of this Remand, above) speculating on the time of onset of the Veteran's kidney disability. Thereafter, the examiner should again provide an opinion as to whether it is at least as likely as not that the Veteran's kidney disability had its onset during the Veteran's first period of service or is otherwise related to his first period of service. The rationale and/or explanation for any opinion or conclusion from the examiner must be provided. With regard to the above opinion, it is imperative that the VA examiner provide the rationale and/or explanation for the May 2012 and September 2012 conclusions that the Veteran's genitourinary complaints, as well as complaints of back pain and abdominal pain documented during his first period of active duty, did not represent the onset of his current kidney disability. The examiner should also specifically set forth the medical reasons for accepting or rejecting the opinions and conclusions of the Veteran's treating nephrologist as well as that of the osteopathic physician noted in the September 2011 and October 2012 letters (See Volume 5 of the claims folders). If the VA examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). If the VA examiner who provided the medical opinions in May 2012 and September 2012 is not available to provide an addendum opinion, make arrangements for the claims folders to be reviewed by another examiner who should be asked to supply the opinion. (If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an examination and the necessary opinion requested.) 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue on appeal de novo for entitlement to service connection for a kidney disability, to include focal segmental glomerulosclerosis with renal failure. If the benefit sought is denied, the Veteran and his attorney must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. 4. Also, provide the Veteran with an SOC for the claim for an increased rating for GERD, status post hiatal hernia, evaluated as noncompensable prior to October 14, 2008, and as 30 percent disabling since October 14, 2008. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If a timely substantive appeal is filed, the claim should be returned to the Board for further appellate consideration, as appropriate, and subject to the current appellate procedures. 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 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. 2012). _________________________________________________ JAMES L. MARCH 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) (2012).