Citation Nr: 1309928 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-19 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for kidney disease. 2. Entitlement to service connection for hypertension, to include as secondary to kidney disease. 3. Entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from August 1990 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The rating decision denied service connection for kidney disease and hypertension and denied a disability evaluation in excess of 10 percent for PTSD. During the pendency of the appeal, a March 2010 rating decision increased the Veteran's disability evaluation for PTSD from 10 percent to 50 percent. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in October 2012 before the undersigned. A copy of the transcript has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. At his October 2012 travel board hearing, the Veteran testified that he received PTSD treatment at the James A. Haley VA Medical Center (VAMC) in Tampa, Florida. He stated that he did not think VA had all of his records from that facility. The most recent VA treatment records associated with the Veteran's claims file from the Tampa VAMC are from October 2008, four years prior to his hearing. Where VA has constructive and actual knowledge of the availability of pertinent records in the possession of the VA, an attempt to obtain them must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). With regard to his kidney disease claim, the Board notes as a preliminary matter that he has not been diagnosed with renal cancer. He does not have a radiogenic disease as set forth in 38 C.F.R. § 3.311 (2012). VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. The Veteran has been diagnosed with renal disease. Further, his service treatment records show that in February 1991, he sustained a shell fragment wound (SFW) from a depleted uranium round, for which he received a Purple Heart. The first and second elements set forth in McLendon are satisfied. The Veteran asserts that his exposure to depleted uranium caused his kidney disease. Although the Veteran's renal disease is not listed among the radiogenic diseases subject to presumptive service connection set forth in 38 C.F.R. § 3.311, he may still show that exposure to depleted uranium is the direct cause of his kidney disease. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran participated in a 1994 study of Gulf War veterans wounded by uranium munitions at the Baltimore VAMC. The report from the study showed that the participants' kidney function was not seriously affected three years after exposure. However, participants who had retained shrapnel had increased amounts of uranium in their urine, which "confirm[s] that uranium gets from the shrapnel into the bloodstream and into the kidney." The report informed the study participants that they had only been checked at one point in time and that it was "possible that some effects might be seen only by comparing measures over time." The study report meets the low threshold for whether there is an indication that the claimed disability may be due to service. Id. The Board does not have sufficient medical evidence to ascertain whether his kidney disease is related to service, based upon the current evidence of record. Thus, a VA examination is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006), see also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make use of its own unsubstantiated medical conclusions); 38 U.S.C.A. § 5103A(d). With regard to the Veteran's hypertension claim, he asserts that it was caused by his kidney condition. As the matter of entitlement to service connection for kidney disease will have a substantial effect on the merits of his claim for service connection for hypertension, it is inextricably intertwined and remanded with the Veteran's claim for service connection for kidney disease. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any outstanding VA treatment records that may exist, including records from the James E. Haley VAMC in Tampa, Florida. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). The notice must contain the following information: (1) the identity of the records that could not be obtained, (2) an explanation of efforts made to obtain the records, (3) a description of any further action that will be taken including notice that VA will decide the claim based upon evidence of record unless the Veteran submits records that VA was unable to obtain and (4) notice that the Veteran is ultimately responsible for providing the evidence. 2. Review the claims file and ensure the development actions have been conducted and completed. Then, schedule the Veteran for an examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has kidney disease that had its onset or was aggravated during active service or is otherwise related to any incident of service, and whether his hypertension was caused by his period of active service or is related to his kidney disease. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. The examiner must provide an opinion as to whether the Veteran's kidney disease began during active service, within one year of service separation, or is related to any incident of service. The examiner must specifically address whether the Veteran's February 1991 shell fragment wound injury from a depleted uranium round caused his kidney disease. If and only if the examiner finds that the Veteran's kidney disease is related to service, he or she must also provide an opinion as to whether the kidney disease caused or aggravated the Veteran's hypertension. If the examiner determines that the Veteran's kidney disease was not caused by an incident of service, the examiner must provide an opinion as to whether the Veteran's hypertension had its onset or manifested to a compensable degree within one year of active service, or is otherwise related to any incident of service. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. 3. After the above has been completed, the RO must 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 must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2011). _________________________________________________ K. PARAKKAL 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).