Citation Nr: 1304174 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 09-47 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a kidney disability. 2. Entitlement to service connection for a qualifying chronic disability, to include undiagnosed illness. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from August 1986 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, denied service connection for an undiagnosed illness condition and a kidney condition. The RO in Atlanta, Georgia, currently retains jurisdiction of the Veteran's claims file. Additionally, to better clarify the issues currently on appeal, the Board will summarize a procedural history of the Veteran's current claims. In the January 2009 rating decision on appeal, the RO also granted service connection for gastroesophageal reflux disorder (GERD), with an initial 10 percent rating, and mild obstructive defect, with an initial 30 percent rating. Both disabilities were granted effective January 11, 2008. In February 2009 the Veteran filed a Notice of Disagreement (NOD) regarding the percentage of disability that he was awarded, and the RO also interpreted this as a NOD regarding his claims of service connection for a kidney disability and an undiagnosed illness condition. In this NOD the Veteran also reported that he could not maintain steady employment due to his service-connected disabilities, which the RO interpreted as a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Thereafter, in September 2009, the RO issued a Statement of the Case (SOC) regarding the issues of entitlement to initial evaluations in excess of 30 percent for mild obstructive defect and in excess of 10 percent for GERD, and entitlement to service connection for a kidney condition and an undiagnosed illness condition. In November 2009 the Veteran filed VA Form 9 appeal to the Board noting that he read the SOC and wished to appeal only the issues of service connection for a kidney condition and an undiagnosed illness condition. On his VA Form 9 he also noted that he claimed service connection for pancreatitis, eye injuries, and a liver condition. In a written statement attached to the VA Form 9, the Veteran discussed the various claims of service connection, including for pancreatitis, eye injuries, a liver condition, benign prostatic hyperplasia, depression, and stress related issues; he also made a statement indicating that he could not maintain gainful employment. On the last page of this document, he noted that "My entitlement to disability based on respiratory and digestive system findings should be at the very least 60 percent." There is no requirement that a substantive appeal be submitted on a VA Form 9. See 38 U.S.C.A. § 7105(d)(3) (West 2002). 38 C.F.R. § 20.202 (2012) states that a substantive appeal consists of a properly completed Form 9 or correspondence containing the necessary information, indicating that these are alternative criteria for meeting the requirements for filing a valid substantive appeal. The "necessary information" consists of specific arguments relating to errors of facts or law made by the AOJ in reaching the determination being appealed, and the arguments made are to be construed liberally. See also Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (substantive appeal statute places burden on claimant to expand upon initial disagreement with RO decision by setting forth, however inartfully, a particular theory of error for the Board to decide). Id. at 360 (upholding Board's finding of lack of valid substantive appeal where communication did not indicate why the denial of the claim might be erroneous, dispute any finding of fact made by the RO decision, include even the vaguest outline of error for the Board to address, or reference any argument made in prior correspondence during the claim). In Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011), the Federal Circuit reversed U.S. Court of Appeals for Veterans Claims' Ortiz decision, holding that 38 U.S.C.A. § 7105(d)(3) does not impose a particular format or degree of specificity for a veteran's appeal. The Federal Circuit held that, although it may be reasonable to expect a veteran to identify the specific claim being appealed when multiple claims are addressed in the same decision, if only one issue is decided by the RO and referenced in the SOC, then the veteran's "expression of a desire to appeal from the regional office's decision effectively identifies the issue to be decided by the Board." Id. The Federal Circuit held that, given the Board's obligations to read veterans' submissions liberally and to consider the full context within which those submissions are made, 38 U.S.C.A. § 7105 (d)(3) does not require an "explicit statement" of what is clearly expressed by a veteran's correspondence. Id. Considering the Veteran's November 2009 statement that his respiratory and digestive system findings should be at the very least 60 percent, it is observed that he did not make specific argument relating to errors of fact or law made by the RO in the September 2009 SOC, which noted multiple issues, for the specific ratings assigned his service-connected mild obstructive defect or GERD, but rather noted that his combined rating for both disabilities should be at least 60 percent. This statement lacks any detail that would warrant its consideration as a substantive appeal, given that the September 2009 SOC adjudicated multiple issues, and makes this case distinguishable from the Federal Circuit's ruling in Rivera, which held that less specificity is necessary when the RO's decision turns on only a single issue and the nature of the claimed error with respect to that issue is obvious from the decision itself. See Rivera at 1377. This finding is supported by the fact that the Veteran specifically checked a box on his November 2009 VA Form 9 Appeal to the Board noting that he read the September 2009 SOC, which listed the issues of entitlement to higher initial ratings for mild obstructive defect and GERD and issues of service connection for a kidney condition and an undiagnosed illness condition, and that he wished to appeal only the issues of service connection for a kidney condition and an undiagnosed illness condition. On the issues of rating mild obstructive defect and GERD, the Veteran's November 2009 communication was not a valid substantive appeal in response to the RO's September 2009 SOC, and, because the Veteran failed to perfect an appeal from the RO's January 2009 decision granting service connection and assigning initial ratings for mild obstructive defect and GERD, that decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2012). Thus, the Board finds that the initial ratings assigned the service-connected mild obstructive defect and GERD were not appealed in the November 2009 VA Form 9 substantive appeal and these issues are not currently before the Board. See 38 C.F.R. §§ 20.200, 20.202. Rather, as explained below, new increased rating claims were raised, and the Board will refer to the RO the issues of entitlement to increased ratings for mild obstructive defect and GERD. Additionally, a January 2010 rating decision denied service connection for TDIU, and a December 2012 rating decision noted that a decision had been made on his November 2009 service connection claims. The December 2012 rating decision denied service connection for an eye condition, liver condition, pancreatitis, prostate hyperplasia, and depression and stress and again denied entitlement to a TDIU. The Veteran did not file a NOD regarding the January 2010 denial of a TDIU or December 2012 denial of service connection for the above noted issues and a TDIU as far as the record before the Board now reflects; thus these issues are not before the Board. 38 C.F.R. §§ 20.200, 20.201. Additionally, in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. If the claimant or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. However, in this case, there is no claim for an initial or increased rating or earlier effective date before the Board, but rather claims of service connection; thus the holding of Rice is inapplicable to the current service connection claim. Additionally, as distinguished from Rice, the claim of entitlement to a TDIU was denied in January 2010 and December 2012 rating decisions, which the Veteran did not appealed by entering a notice of disagreement. Accordingly, the issue of entitlement to TDIU is not before the Board. Finally, following the December 2012 rating decision, the Veteran has not entered a NOD. Accordingly, there is no pending or unadjudicated claim or issue of entitlement to TDIU to refer to RO. The issues of entitlement to ratings in excess of 30 percent for mild obstructive defect and in excess of 10 percent for GERD have been raised by the record (November 2009 letter attached to November 2009 VA Form 9), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for a kidney disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran did not serve in Southwest Asia during the Persian Gulf War. 2. Throughout the appeal period, the Veteran has not claimed to have suffered from any signs or symptoms of an undiagnosed illness resulting in qualifying chronic disability. CONCLUSION OF LAW The criteria for service connection for a qualifying chronic disability, to include undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The VA General Counsel has interpreted that the notice and duty to assist provisions of the VCAA are inapplicable where undisputed facts render a claimant ineligible for the benefit claimed and where further factual development could not lead to an award. VAOPGCPREC 2-2004; VAOPGCPREC 5-2004. Where the law is dispositive, the claim must be denied due to a lack of legal merit. As will be discussed in the following decision, entitlement to service connection for qualifying chronic disability, to include undiagnosed illness, is not warranted as a matter of law due to lack of qualifying service. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, review of the VA's duty to notify and assist is not necessary, including obtaining private or VA treatment records, records generated in conjunction with a claim of Social Security Administration (SSA) benefits, or providing a VA medical examination and opinion regarding the nature and etiology of the claimed chronic qualifying disability, to include an undiagnosed illness. In cases such as this, VA is not required to meet the duty to notify or assist a claimant, where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to service connection on a direct basis, presumptive service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117 (West 2002 & Supp. 2011); 38 C.F.R. § 3.317 (2012). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia Theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(2). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that, by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome. A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2). Additionally, effective September 29, 2010, presumptive service connection is warranted with the manifestation of the following infectious diseases: (i) brucellosis, (ii) campylobacter jejuni, (iii) Coxiella burnetii (Q fever), (iv) malaria, (v) mycobacterium tuberculosis, (vi) nontyphoid salmonella, (vii) shigella, (viii) visceral leishmaniasis, and (ix) West Nile virus. 75 Fed. Reg. 59,968, 59,971 (Sept. 29, 2010); to be codified at 38 C.F.R. § 3.317. In the present appeal, the Veteran is not claiming service connection for any of those diseases. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability shall be considered service connected for purposes of all laws of the United States. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(4). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection for an Undiagnosed Illness The Veteran claimed in his January 2008 VA Form 21-526, Veteran's Application for Compensation that he was stationed in the "Gulf" after August 1, 1990. In his November 2009 VA Form 9 Appeal to the Board, the Veteran stated that he was not claiming service connection for an undiagnosed illness due to exposure, and that the condition he was claiming was documented in his service treatment records (STRs). The Veteran's further contentions in his Form 9 indicate that he also claimed service connection for pancreatitis and asserted that his pancreatitis is an undiagnosed illness condition. A review of all of the evidence of record shows that the Veteran did not serve in Southwest Asia during the Persian Gulf War. Throughout the appeal period he has not claimed to have suffered from any signs or symptoms of an undiagnosed illness and denied an undiagnosed illness. The Veteran's DD Form 214 shows receipt of the National Defense Service Medal, Meritorious Unit Commendation, Navy "E" Ribbon, Sea Service Deployment Ribbon, and .45 Pistol Marksmen (2). It also indicates three years, eleven months, and sixteen days of sea service and no foreign service. His personnel records show that he served primarily aboard the USS Forrestal and USS Hunley. Based on the Veteran's varying contentions noted above, it is unclear whether he has maintained that he served in the Gulf during the Persian Gulf War following the submission of the January 2008 service connection claim form; however, there is no indication in the DD Form 214 and personnel records, such as medals showing service in support of the Persian Gulf War, showing service in the Southwest Asia theater of operations during the Persian Gulf War, including those bodies of water specified in 38 C.F.R. § 3.317(d)(2). The personnel records show he served primarily aboard the USS Forrestal and USS Hunley, but do not indicate that these vessels were deployed in the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, or the Red Sea during the Persian Gulf War as required by 38 C.F.R. § 3.317(d)(2). The Veteran has not made specific allegations that he served aboard vessels that visited those specified bodies of water as required by 38 C.F.R. § 3.317(d)(2). Therefore, the Board finds that he is not a "Persian Gulf veteran" who served in the Southwest Asia theater of operations as defined by regulation. See 38 C.F.R. § 3.317. Because the Veteran is not a Persian Gulf veteran, he cannot be granted service connection for a qualifying chronic disability, including due to an undiagnosed illness, and his claim under 38 C.F.R. § 3.317 must be denied as a matter of law. See Sabonis, 6 Vet. App. at 430. Additionally, in cases where a claimant applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this regards, as discussed above, in his November 2009 VA Form 9 the Veteran claims that he has pancreatitis or symptoms thereof, and that, although he was treated for gastritis during service, pancreatitis was the underlying condition. He also claimed that his kidney condition was denied unfairly because toxins and enzymes produced by the pancreas can injury the heart, lungs, kidneys, and other organs. In the December 2012 rating decision, the RO, in pertinent part, denied service connection for a liver condition (claimed as secondary to pancreatitis), pancreatitis, and prostatic hyperplasia (claimed as secondary to pancreatitis). Additionally, the January 2009 rating decision on appeal, in pertinent part, denied service connection for a kidney condition and granted service connection for GERD. The Veteran has not specifically claimed any symptoms of undiagnosed illness other than those related to his pancreas. Service connection for a liver condition, pancreatitis, and prostatic hyperplasia were denied in the as of yet unappealed December 2012 rating decision, and service connection for a kidney condition remains on appeal before the Board. The Veteran is service connected for GERD and mild obstructive defect, which the Board notes is a respiratory disability. Thus, the Veteran has not reported that he has symptoms of an undiagnosed illness, but rather has reported he has symptoms of specific disabilities for which he has either already been granted or denied service connection in previous decisions by the RO. Regarding any symptoms he has reported as caused by his kidney condition, it is noted that this claim is currently before the Board. Therefore, the Veteran has not reported that he suffers from any symptoms of an undiagnosed illness that could be attributed to any potential current disability, but rather has simply claimed service connection for an undiagnosed illness, which as discussed above as a matter of law, he cannot be granted because of a lack of Persian Gulf service. Congress has specifically limited entitlement to service connection for instances in which disease or injury have resulted in a disability. See 38 U.S.C.A. §§ 1110. Because he has not claimed to have suffered any symptoms of his undiagnosed illness, there is no symptom that can be attributed to a current disability for which he could be granted service connection on a direct basis. Consequently because of a lack of Persian Gulf service, this claim must be denied as a matter of law. See Sabonis at 426 (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Service connection for a qualifying chronic disability, to include undiagnosed illness, is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for a kidney disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c)(d) (2012). If VA makes reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them, or after continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. For non-Federal records requests, VA may provide the notice at the same time it makes its final attempt to obtain the relevant records. 38 C.F.R. § 3.159(e). In a written statement accompanying his November 2009 VA Form 9 substantive appeal to the Board, the Veteran reported that he received treatment from several VA medical facilities and Jupiter Medical Center, Palm Beach Gardens Medical Center, Doctor's Hospital of Tattnall County, Evans Memorial Hospital, and Pineland Mental Health. He also included November 2009 authorizations to VA to release medical records for Jupiter Medical Center, Evans Memorial Hospital, and Pineland Mental Health. A review of the record does not indicate that the RO attempted to obtain these private treatment records pursuant to 38 C.F.R. § 3.159(c) or notified the Veteran if they were unable to obtain them pursuant to 38 C.F.R. § 3.159(e). In January and February 2012, the RO mailed the Veteran a letter notifying him that VA would obtain treatment records from Jupiter Medical Center, Palm Beach Gardens Medical Center, Evans Memorial Hospital, and Pineland Mental Health upon his completion of enclosed VA Form 21-4142s, Authorization and Consent to Release Information. The January 2012 letter was sent to the Veteran; however, it was returned as undeliverable. The February 2012 letter was sent to the incorrect P.O. Box number. A September 2012 document of record from the RO noted that the Veteran moved to his parents' house in a different city in Georgia. Subsequent letters from the RO to the Veteran were sent to his new address, and there is no indication that they were not delivered. A review of the Veteran's claims file shows that private treatment records from the Doctor's Hospital of Tattnall County from approximately December 2008 to September 2009 are of record. Given that the Veteran reported that he received treatment at numerous private medical facilities following service, and did not receive the January or February 2012 letters from the RO notifying him that VA would obtain these records upon his completion of VA Form 21-4142s, this case should be remanded so the RO/AMC can attempt to obtain these outstanding private treatment records. See 38 C.F.R. § 3.159(c). In an April 2009 written statement, the Veteran reported that he was in the process of applying for Social Security Administration (SSA) disability benefits, but had no case pending at that time. The Veteran has not made subsequent statements indicating he did indeed apply for SSA benefits; however, because his claims must be remanded for additional development, on remand the RO/AMC should inquire as to whether the Veteran did apply for SSA benefits, and, if so, should obtain any outstanding SSA decision and accompanying medical records and reports. Additionally, it is observed that a VA examination was conducted in September 2012, to assist in determining the nature and etiology of the Veteran's claimed kidney disability. The VA examiner opined that the claimed kidney condition was less likely than not proximately due to, or a result of, his service-connected disability. The rationale for this opinion was that a cause-effect relationship between pancreatitis and nephrolithiasis has not been established to date by the preponderance of the medical literature. It is observed that the Veteran is not service connected for pancreatitis and his STRs show that he was treated for gastritis and possible parasites during service rather than pancreatitis. In the November 2009 written statement, the Veteran contended that during service the proper tests and studies were not preformed at the onset of his pancreatitis and it went undiagnosed for many years. A review of the Veteran's Virtual VA electronic claims file shows that he was given a diagnosis of chronic pancreatitis by various VA medical providers. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). An inadequate examination frustrates judicial review. Hicks v. Brown, 8 Vet. App. 417, 422 (1995). The September 2012 VA examiner opined that the Veteran's kidney disability was not related to pancreatitis, which the examiner appears to report was service connected, which is not accurate. Nor do the Veteran's STRs show that he had pancreatitis in service as he contended; however, his private treatment records may indicate that the onset of his pancreatitis during or shortly after service. Therefore, given that the VA examiner's opinion appears to be premised on his incorrect belief that the Veteran is service connected for pancreatitis and an incomplete record, after attempting to obtain the identified private treatment records, the September 2012 VA examiner should review all of the evidence of record and provide an addendum medical opinion regarding whether the Veteran's kidney disability is related to service, to include the claimed in-service pancreatitis, based on all of the evidence of record and a proper factual basis. A review of the Veteran's Virtual VA electronic claims file shows that the AOJ obtained VA treatment records from VA medical facilities in Augusta, Georgia, Dublin, Georgia, and West Palm Beach, Florida, in September and November 2012. The AOJ indicated that the Dublin, Georgia, records were added to the electronic claims file on November 1, 2012, and the Augusta, Georgia, and West Palm Beach, Florida, records were added on September 11, 2012; since the Veteran's claim is being remanded, on remand the RO/AMC should also obtain any outstanding treatment records from VA medical facilities since they last obtained records on November 1, 2012. Accordingly, the issue of service connection for a kidney disability is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding treatment records of the Veteran's claimed kidney disability from VA medical facilities in Dublin, Georgia, Augusta, Georgia, and West Palm Beach, Florida, dated after November 1, 2012. 2. Contact the Veteran and inquire as to whether he applied for SSA disability benefits; if so, all necessary actions should be taken to obtain these records and associate them with the claims file. 3. Send the Veteran a new version of the January and February 2012 letters of record and release authorization forms asking him to provide authorization to enable the AMC/RO to obtain any additional evidence from the private treatment facilities he indentified in the November 2009 written statement of record, including from the Doctor's Hospital of Tattnall County, pertinent to the claim of service connection for a kidney disability. After securing the necessary authorizations for release of this information, the RO/AMC should seek to obtain copies of all private records identified by the Veteran not already on file. If the RO/AMC is unable to obtain any of the above records, or after continued efforts to obtain any of the above records it is concluded that it is reasonably certain that they do not exist or further efforts to obtain them would be futile, the Veteran and his representative should be informed of such and given the opportunity to submit the requested information. See 38 C.F.R. § 3.159(e). 4. The AMC/RO should request that the examiner who conducted the September 2012 examination provide an addendum opinion regarding whether the Veteran's kidney disability is at least as likely as not (probability of 50 percent or more) related to service, including his claimed pancreatitis in service. The examiner is to make a specific finding as to whether or not the Veteran had pancreatitis during service. The relevant documents in the claims folder should be furnished to the examiner for use in the study of this case, including any private or VA treatment records or SSA records obtained following completion of the above remand instructions. A rationale for any opinion expressed in the examination report should be provided. If any opinion can only be provided with resort to speculation, the examiner should so state and provide the reason that an opinion would require speculation. If the September 2012 VA provider is unavailable to offer the opinion sought, the Veteran should be afforded a new VA examination for the purpose of determining whether his kidney disability is related to service. The relevant documents in the claims folder should be furnished to the examiner for use in the study of this case, including any private or VA treatment records or SSA records obtained following completion of the above remand instructions. Following a review of the relevant medical evidence in the claims file, history by the Veteran, physical examination, and any tests that are deemed necessary, the examiner should offer the following opinion: Is it at least as likely as not (50 percent or higher degree of probability) that any identified kidney disability that is currently present is etiologically related to service, including the Veteran's claimed pancreatitis in service? The examiner is to make a specific finding as to whether or not the Veteran had pancreatitis during service. A rationale for any opinion expressed in the examination report(s) should be provided. If any opinion can only be provided with resort to speculation, the examiner should so state and provide the reason that an opinion would require speculation. 5. After completing the above actions, and any additional notification and/or development deemed warranted, the issue of service connection for a kidney disability should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which 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). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs