Citation Nr: 1308931 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 06-01 834 ) 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 cervical spine (neck) disability. 2. Entitlement to service connection for a kidney disability, claimed as kidney stones. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from September 2002 to January 2003 and from February 2003 to January 2004, including service in Southwest Asia. He also had service in the Puerto Rico Army National Guard (PRARNG), to include various periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA), between January 1978 and July 2004. This matter came to the Board of Veterans' Appeals (Board) initially on appeal from a September 2005 rating decision, in which the RO denied the Veteran's service connection claims. In December 2009, the case was remanded for further notice and development. During the pendency of that remand, in a March 2011 rating decision, service connection was granted for bilateral hearing loss. As such, that issue is no longer in appellate status. In July 2011, the case was remanded again to complete the required development. During the pendency of that remand, in an August 2012 rating decision, service connection was granted for degenerative disc disease of the lumbar spine (claimed as chronic low back disorder). As such, that issue is no longer in appellate status. The Board notes that development of the Veteran's claim for service connection for a kidney disability has revealed that the Veteran is diagnosed with bilateral renal cysts requiring some degree of medical attention. Although the Veteran's original claim featured symptoms he had attributed to kidney stones, the medical diagnosis of a different kidney disability appears to be reasonably contemplated within the scope of the claim he has advanced on appeal. The Board has rephrased the issue, as listed above, to clarify the scope of consideration accordingly. As a preliminary matter, the Board note that there has been some confusion regarding the dates and details of the Veteran's periods of military service. Much of this has been discussed in the Board's prior remands on this matter. However, at this time the Board observes that some VA documents associated with the adjudication of this appeal have described the Veteran's recent period of active duty service as spanning from September 2002 to January 2003. That date range corresponds to the period of active duty service documented on a DD Form 214 of record; however, the claims file contains an additional DD Form 214 documenting a further period of active duty service from February 2003 through the end of January 2004. A new November 2011 memorandum from the PRARNG, added to the claims file in accordance with the Board's remand directives, confirms that the Veteran had active duty service (distinguished from active duty for training) for this additional period of February 2003 through the end of January 2004. This additional period of active duty service is significant in this case, as discussed below, and has been carefully noted and considered. The Board also notes that the prior remands in this case included directives seeking to verify the details and timing of the Veteran's various periods and types of service. A November 2011 memorandum provided through the Staff Judge Advocate of the PRARNG is now of record and certifies a list of the Veteran's various periods of ACDUTRA and active duty. Additionally, in December 2012, a folder of service personnel records Defense Personnel Records Information Retrieval System (DPRIS) was added to the claims file; this folder includes another copy of a Form DD 214 showing ACDUTRA from January to June 1978 (already of record). With regard to additional documentation of service, to include additional service medical records, the RO's effort to obtain such records from indicated sources is documented in the claims file and summarized in a March 2012 Formal Finding of Unavailability. The Board also notes that the translation of documents of record containing Spanish language text has been accomplished. he Board finds that there has been substantial compliance with the Board's remand directives concerning obtaining service records. The issue of entitlement to service connection for a kidney disability, claimed as kidney stones, 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. FINDING OF FACT The Veteran's cervical spine arthritis had onset during, or is etiologically linked to, the Veteran's active duty military service. CONCLUSION OF LAW The criteria for service connection for cervical spine arthritis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Analysis The Veteran claims entitlement to service connection for a cervical spine disability. The Veteran has also claimed that he suffers from lumbar spine disability associated with the same in-service events that are the basis of his cervical spine claim; during the processing of the Board's July 2011 remand, service connection has been granted for the claimed lumbar spine disability in an August 2012 RO rating decision. The Veteran contends that he injured both his cervical spine and his lumbar spine in each of two in-service accidents. First, in multiple medical records and statements, the Veteran has reported that he suffered a fall during reserve duty training exercises in Panama in 1987 during which he began to experience back and neck pain. Secondly, in multiple medical records and statements, the Veteran has reported that he experienced injury to his neck and back during a significant motor vehicle accident during active duty service while deployed to Southwest Asia during the period from 2002-2004. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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"). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on 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) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board initially notes that there is no controversy in this case as to the fact that the Veteran has a current chronic disability of the cervical spine. The Veteran has been diagnosed with degenerative joint disease (arthritis) of the cervical spine, as confirmed by MRI in a May 2008 VA medical report and discussed in a June 2010 VA examination report. The important question in this case is whether the current cervical spine disability may be linked to the Veteran's military service through in-service onset, continuity of symptomatology, or other manner of etiological nexus. The Board finds that, resolving reasonable doubt in the Veteran's favor, that service connection for the cervical spine disability is warranted on the basis that it is reasonably shown to have manifested in a continuity of symptomatology from the time of his active duty service onward. There is no contemporaneous documentation of either of the alleged in-service injuries nor any other injury involving the Veteran's neck. However, as discussed in the Board's prior remands, the Board observes that the set of the Veteran's service treatment records in the claims file appears to be somewhat incomplete. Steps taken during the processing of the Board's July 2011 remand directives have resulted in a formal determination that no additional service treatment records are available, as described in the March 2012 Formal Finding of Unavailability. Significantly, the Board notes that there has previously been some confusion in adjudication of this claim as to the correct dates of the Veteran's recent period of active duty service. Several VA documents associated with adjudication of this claim refer to the Veteran's last period of active duty as concluding in January 2003. However, the Board notes that there are multiple Forms DD-214 of record, and one Form DD-214 documents that the Veteran continued to serve on active duty from February 2003 to January 2004; the Veteran's active duty status at that time (as distinguished from ACDUTRA) is confirmed by the November 2011 memorandum from the PRARNG. Recognizing that the Veteran's active duty service concluded in January 2004 rather than January 2003 is significant in considering the chronology of events shown in the evidence of record. The Veteran's active duty service concluded at the very end of January 2004, and VA medical records in the claims file clearly show that the Veteran was seeking medical treatment for cervical spine pain within the next few months. VA medical records from June 2004 through January 2005 contain several instances documenting the Veteran's complaints of cervical spine pain during the year following the conclusion of his active duty service. VA medical records following this period go on to document a clear continuity of cervical spine pain complaints persisting through the present time. The Veteran's persisting complaints of cervical spine pain were eventually associated with objectively confirmed degenerative changes (arthritis) in an MRI in May 2008. The Board has given careful consideration to whether the shown complaints of cervical spine pain within one year of the conclusion of the Veteran's active duty service sufficiently show arthritis manifesting to a compensable degree within one year of discharge such that the disability may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this regard, the Board notes that lay evidence may establish symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's complaints of cervical spine pain, now associated with a diagnosis of arthritis of the cervical spine, are shown to have existed since at least as early as the first few months following separation from active duty service. However, a June 2004 VA medical report shows that X-ray study of the Veteran's lumbar and cervical spines showed evidence of abnormality in the lumbar spine but no abnormality of the cervical spine. The June 2004 X-ray study suggests that the Veteran did not have objectively observable arthritis at that time. Nevertheless, the Veteran continued to seek medical treatment for persisting neck pain complaints during the remainder of his first year following active duty service (as documented in 2004 and 2005 VA medical records), and onward to the present. A June 2005 VA examination does not identify any diagnosis of cervical spine disability to link to the Veteran's continuing symptom complaints; however, it appears that the June 2005 VA examination report essentially repeats the findings of the X-ray study from June 2004. An October 2005 VA treatment report indicates that the Veteran's neck pain symptoms were still medically considered to be signs of possible mechanical and degenerative changes, and degenerative changes were eventually confirmed on MRI in May 2008. The Board has twice previously remanded this issue for development including attempts to obtain outstanding service treatment records and development of a VA examination report with an adequate etiology opinion. The July 2011 Board remand directed that a VA examination report address this matter: "If arthritis is shown, the physician should also indicate whether its onset was within one year of the Veteran's discharge from active duty...." The resulting September 2011 VA examination report does not respond to this inquiry. Indeed, the complete etiology opinion offered by the September 2011 VA examination report is: The evidence found, other than veteran's subjective complaints do not support a relationship between veteran's Cervical condition and his service in the National Guard since there is no documentation of the accident he alledges [sic] occurred during his last period of active duty that ended in 2004, where he allegedly hurt his neck. The Board has given significant consideration to the possibility of remanding this issue again for a clear and specific medical determination as to whether the Veteran's documented neck complaints during the year following his active duty service were manifestations of his later-diagnosed degenerative changes / arthritis of the cervical spine. The Board seeks at this time to avoid any unnecessary additional delay in the resolution of the Veteran's appeal. The Board finds that the September 2011 VA examination report presents an inadequate etiology opinion, however, rather than remand for a third attempt at a complete etiology opinion, the Board believes that evidence of record has been sufficiently developed so as to frame significant reasonable doubt which may be resolved in the Veteran's favor to reach a final determination on this issue at this time. The Board once again notes that the Veteran's service treatment records available for review do not appear to be complete (or, at the least, appear somewhat sparse in terms of coverage of the period of active duty service), even after multiple remands directing efforts to obtain any obtainable outstanding service records. The Board notes that there is a dearth of service treatment records from the period of active duty service concluding in January 2004. The RO's attempts, in accordance with the Board's remand directives, to obtain additional service treatment records have resulted in findings that no additional service treatment records are available; it appears that there is little prospect for developing additional documentation pertinent to active duty service and the time around the Veteran's separation. A July 2002 PRARNG Medical Review Board memorandum shows that the Veteran had previously been on Permanent Profile for low back pain since April 1998, but was declared "Fully Fit without limitations." A September 2002 "Health Assessment" form contains no information pertinent to this issue. A November 2002 medical report from Saudi Arabia shows that the Veteran had developed low back pain complaints in the prior two months. A May 2003 sick slip documents that the Veteran had muscular spasms of the lower back. An August 2003 medical evaluation form shows that the Veteran asserted that "low back pain" was aggravated during his mission and that he was being treated for the problem at that time. Although the limited available service treatment records do not show that the Veteran had complaints or diagnosis concerning the cervical spine during service, there is no report of any complete medical examination or medical history questionnaire from around the time of the Veteran's separation at the end of January 2004. In the absence of a service separation examination and/or a complete questionnaire regarding the Veteran's medical condition proximate to his separation from service, there is no particularly persuasive evidence contradicting the Veteran's competent testimony that he had onset of worsening neck pain during that period of active service. The Veteran's testimony regarding the onset of worsening neck pain prior to his separation in January 30, 2004, is suggestively supported by VA treatment records showing that he was receiving treatment for neck pain together with back pain approximately four months following the conclusion of active duty service. None of the treatment records suggest consideration of any non-service etiology (such as any post-service neck injury during the intervening four months) for the neck pain complaints. The evidence in this case does not provide great clarity on the questions at the core of this issue on appeal. After two prior remands for additional development, the Board finds that the evidence does not preponderate against the Veteran's claim and the Board finds that additional delay for further development is unlikely to substantially clarify answers to all of the critical questions. What is clearly established by the evidence is that the Veteran has had a persisting continuity of neck pain symptom complaints beginning no later than approximately four months following separation from active duty service, and that the Veteran's complaints of neck pain have been linked to arthritis of the cervical spine that was objectively confirmed in May 2008. The evidence is unclear with regard to scrutinizing the Veteran's assertion that his neck pain manifested during his active duty service; on the one hand there is no documentation of neck injury or neck pain during such service, on the other hand there is (1) no evidence indicating that the Veteran denied neck pain or had a medical evaluation of his neck and (2) no evidence concerning any symptom questionnaire or medical evaluation whatsoever in the final five months of the Veteran's active duty service nor at the time of the conclusion of his active duty service. Under the circumstances, the Board finds no persuasive reason to question the credibility or otherwise to doubt the Veteran's competent statements recalling onset of neck pain during active duty service. As an aside, the Board also briefly observes that there remains some question as to whether there may be reasonable doubt on the matter of whether the Veteran's documented 2004 neck symptoms, viewed in hindsight following the later confirmed diagnosis of cervical spine arthritis, were sufficient manifestations of arthritis to warrant service connection on a presumptive basis. There are uncertainties raised by the evidence in this case, and the evidence does not conclusively or indisputably demonstrate in-service onset of the claimed cervical spine disability. However, after reviewing the totality of the evidence, to include the Veteran's statements and the competent medical evidence, the Board finds that the evidence supporting the claim is at least in a state of equipoise with the negative evidence. 38 U.S.C.A. § 7105(c). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. There is clear contemporaneous documentation of pertinent cervical spine pain within the first few months following the Veteran's active duty service, and the Veteran's assertions that he had cervical spine pain at the end of his active duty service are plausible and not directly contradicted by any evidence of record. The Veteran's statements are found to be credible for the purpose of establishing a continuity of symptomatology during the short intervening period following service, and they are reasonably supported by the objective medical evidence of record. 38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Because the evidence is at least in a state of relative equipoise in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Hence, service connection is warranted for the Veteran's chronic cervical spine disability. The Board has also considered that the record contains some suggestion that the Veteran may have had a neck injury prior to the recent period of active duty service (by his own description he suffered a neck injury during reserve training in the 1980s) and/or had neck spasms documented on one occasion in the 1990s. However, the Board finds no persuasive evidence indicating that any chronic cervical spine disability was present prior to the Veteran's pertinent recent active duty service. The Board finds no basis in this case for concluding that there was any pre-existing cervical spine disability; accordingly, for the purposes of this decision, the Board finds that the cervical spine disability reasonably shown to have manifested during active duty service had initial onset during active duty service. Thus, there is no necessity to further discuss questions concerning aggravation of pre-existing disability in this case. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date in July 2006. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection is warranted for arthritis of the cervical spine (neck). To this extent, the appeal is granted. REMAND The Veteran seeks to establish entitlement to service connection for a kidney disability. The Board's July 2011 remand noted: "The appellant reported a history of kidney stones in 1988 with initial manifestations of right flank pain, which has been intermittent with remissions. However, the record reveals only that the Veteran has been diagnosed with renal cysts, not kidney stones (or calculi)." The Board directed, in pertinent part, that a VA examiner: should render an opinion, consistent with sound medical judgment, as to whether any kidney ... disorder at least as likely as not (50 percent or greater probability) was first manifest or had its onset during the appellant's period of active duty ... or is the result of any injury suffered or disease contracted during active duty, ACDUTRA or INACDUTRA in the Army National Guard. The resulting September 2011 VA examination report notes that the Veteran "gives a history of kidney stone," that "[t]he military record does not have any documentation of the kidney stone problem," that "the VA record does not show any documented kidney stone," and that the "radiographic" evidence "does not show any kidney stone." The examiner noted reviewing the previous June 2010 VA examination report, including the reported history of a single episode of renal stone in 1988. The examiner noted that "He has undergone numerous studies, including CT of kidneys (2008), CT of pelvis (2008)[,] Abdominal Sonograms X 2 and none have revealed any kidney stones, only bilateral renal cysts." The examiner explains that, in light of the fact that "[t]his veteran[']s records do not show any documentation of kidney stones," the examiner must conclude that "this veteran does not have a condition of kidney stones (one episode does not sustain a diagnosis for a disease)." The examiner's only further discussion of the matter is to state that an "opinion as to relationship to period of active duty of 2002-2004 is r[h]etorical and not applicable, since ... veteran mentioned being found with a kidney stone in 1988, which pre-dates the active service period by many years." The Board has twice previously remanded this issue to develop a VA examination report with an adequate analysis of etiology with discussion of rationale for the medical opinion. Although the Board regrets additional delay in this case, the Board must find that the latest September 2011 VA examination report presents a medical opinion on this issue that is inadequate for the purposes of proper appellate review. The medical opinion essentially concludes that the Veteran does not have a chronic kidney stone disability. However, this is not sufficient to resolve the medical question at issue and asked by the Board's prior remands. The Board's prior remands have requested that a medical opinion address and explain whether any kidney disorder found in the Veteran was first manifest or had its onset during the Veteran's period of active duty, or is the result of any injury suffered or disease contracted during active duty, ACDUTRA or INACDUTRA in the Army National Guard. Although the September 2011 VA examination report explains finding no chronic kidney stone disability, the examiner does find that the Veteran has "bilateral renal cysts" and the examination report suggest that there may be "Genito urinary" problems associated with the diagnosis (the report lists "Multiple[e] renal cysts" as a "Diagnosis" and then lists "Genito Urinary" as a "Problem Associated with the diagnosis). The report shows that the Veteran described difficulty urinating as well as urinary incontinence with a history of dysuria dating back to 2003. The Board notes that other VA medical records, including a November 2008 VA medical report, indicate that the Veteran's kidney cysts may be a significant diagnosis and that the cysts require medical monitoring. The Board is unable to find that the diagnosis of bilateral renal cysts is not a chronic disability. As the Veteran's contentions with regard to this issue on appeal reasonably concern kidney disability, the Board has previously directed that an etiology opinion on this issue address any found kidney disability; the evidence of record continues to lack a medical etiology opinion addressing the question of whether the Veteran's diagnosed bilateral renal cysts may represent a kidney disability etiologically linked to the Veteran's service (including addressing the potential significance, if any, of the Veteran's documented in-service complaints of back pain and the Veteran's lay testimony concerning a motor vehicle accident in approximately 2002-2003 that was followed by a different back pain). The Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). It important to note here that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because the VA examination reports on the Veteran's kidney claim fail to address the question of whether his diagnosed bilateral renal cysts are etiologically linked to his military service, the Board finds that the VA examination reports are not adequate. Therefore, remand for an adequate VA opinion is again required. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority as it pertains to the issue remaining on appeal (including obtaining any necessary updates to the Veteran's VA treatment records and obtaining any translation of Spanish language text therein). 2. Provide the appellant's claims file to an appropriate physician, preferably the June 2010 VA examiner, if available, to review and to provide an addendum etiological opinion assessing all pertinent lay and medical evidence to the extent that it could substantiate the appellant's claim remaining on appeal. Based on examination findings, medical principles, and historical records, including available service personnel and treatment records, the physician should render an opinion, consistent with sound medical judgment, as to whether any diagnosed kidney disorder (to include the diagnosed bilateral renal cyst disorder) at least as likely as not (50 percent or greater probability) was first manifest or had its onset during the appellant's period of active duty from September 12, 2002 to January 30, 2004, or is the result of any injury suffered or disease contracted during active duty, ACDUTRA or INACDUTRA in the Army National Guard. In answering this question, the examiner should address whether any diagnosed kidney disability is at least as likely as not etiologically linked to events described in the Veteran's testimony such as an in-service motor vehicle accident in approximately 2002 or 2003 or the Veteran's in-service complaints of back pain. The physician should set forth all findings, along with a complete rationale for the conclusions reached, in a printed report. If any requested medical opinion cannot be given, the physician should state the reason(s) why. 3. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See Stegall, cited to above. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the service-connection claims remaining on appeal, in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the appellant and his representative an appropriate supplemental statement of the case, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs