Citation Nr: 1306897	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  07-29 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for a kidney disorder to include a right renal cyst and renal calculi.  

2.  Entitlement to service connection for a sinus disorder to include sinusitis.  


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel



INTRODUCTION

The Veteran had active service from March 1980 to March 2000.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) which, in pertinent part, denied service connection for a chronic right elbow disorder to include degenerative joint disease and olecranon bursitis, a chronic left ankle disorder, a chronic kidney disorder to include renal calculus, and a chronic sinus disorder.  In December 2006, the RO, in pertinent part, denied service connection for chronic gastroesophageal reflux disease (GERD) and chronic sleep apnea.  In August 2010, the Board granted service connection for GERD and remanded the remaining issues to the RO for additional action.  

In a September 2011 rating decision, the Appeals Management Center (AMC) granted service connection for right elbow joint olecranon bursitis and left ankle sprain residuals; assigned 10 percent evaluations for those disabilities; granted service connection for obstructive sleep apnea; assigned a 50 percent evaluation for that disability; and effectuated the awards as of January 17, 2006.  

The Board has reframed the issues of service connection for a chronic kidney disorder to include renal calculus (kidney stones) and a chronic sinus disorder as entitlement to service connection for a kidney disorder to include a right renal cyst and renal calculi and a sinus disorder to include sinusitis in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim).  

The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence.  

The issue of service connection for a sinus disorder is REMANDED to the RO via the AMC in Washington, DC.  The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part.  


FINDING OF FACT

A chronic right renal cyst was initially manifested during service.  


CONCLUSION OF LAW

A chronic right renal cyst was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must inform the claimant about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide.  In this decision, the Board grants the Veteran's claim of entitlement to service connection for a right kidney cyst.  As such, no discussion of VA's duty to notify and to assist is necessary.  


II.  Service Connection

Service connection may be granted for chronic disability arising from disease or 

injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  

Service connection may 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) (2012).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

A March 2000 Air Force treatment record conveys that a contemporaneous computerized tomography study revealed a right kidney cyst.  A March 2000 intravenous pyelogram (IVP) revealed calcifications in the lower right pelvis consistent with phleboliths.  Contemporaneous X-ray studies revealed possible kidney stones.  

At a June 2006 VA genitourinary examination for compensation purposes, the Veteran presented a history of having kidney stones in 1999.  Contemporaneous X-ray studies of the kidneys advanced an impression of "pelvic calcifications presumably vascular in nature although distal uretherolithisasis cannot be excluded."  The examiner clarified that the X-ray studies revealed "no clear cut calculus."  The Veteran was diagnosed with a "past history of renal calculus, no symptoms now."  

A June 2011 VA genitourinary examination for compensation purposes, the Veteran presented a history of inservice bilateral flank pain and "some kidney stones."  Contemporaneous echographic studies of the abdomen revealed a right renal cyst and no renal calculi.  An impression of a right renal cyst was advanced.  The Veteran was diagnosed with a chronic kidney disorder manifest by a right renal cyst.  The examiner clarified that the Veteran's right renal cyst was etiologically related to his inservice right renal cyst.  

A chronic right renal cyst was diagnosed during active service and at the most recent VA urological evaluation of record.  No chronic kidney disorder manifested by renal calculi has been diagnosed.  Therefore, the Board finds that service connection for a chronic right renal cyst is now warranted.  


ORDER

Service connection for a chronic right renal cyst is granted.  


REMAND

Unfortunately, another remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  

The VA clinical documentation of record appears to be in conflict as to whether the Veteran has a chronic sinus disorder.  A March 2011 VA treatment record states that the Veteran complained of "sinus disease."  An assessment of "sinus disease [patient] with chronic complaints as post nasal drip and facial pain old [computerized tomography] scan shows polyps" was advanced.  The report of an April 2011 VA examination for compensation purposes states "no opinion given since [patient] has no sinus pathology."  A June 2011 VA treatment record relates that the Veteran complained of nasal congestion.  An assessment of "chronic sinusitis will be [treated] with po antibiotics and [followup]" was advanced.   Clinical documentation of the prescribed subsequent VA treatment is not of record.  

VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Given the apparent conflicting findings as to whether the Veteran has a chronic sinus disorder, the Board finds that further VA evaluation would be helpful in resolving the issues raised by the instant appeal.  

VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim.  Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  Clinical documentation dated after April 2012 is not of record.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he provide information as to all treatment of his claimed chronic sinus disorder, including the names and addresses of all health care providers whose records have not already been provided to VA.  Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all pertinent records, including statements and treatment records, not already of record, for incorporation into the record.  If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e).  

2.  Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after April 2012.  

3.  Then schedule the Veteran for a VA examination to address the current nature and etiology of his claimed chronic sinus disorder.  All indicated tests and studies should be accomplished and the findings then reported in detail.  The examiner should specifically state whether the Veteran has chronic sinusitis.  

The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified chronic sinus disorder had its onset during active service; is etiologically related to the Veteran's inservice sinus complaints; or otherwise originated during active service.  

All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein.  The examination report should specifically state that such a review was conducted.  

A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.  

4.  Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted.  Then readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the case is returned to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim.  See 38 C.F.R. § 3.655 (2012).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002).  
 


____________________________________________
J. T. HUTCHESON
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs