Citation Nr: 1324508 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 06-34 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a kidney disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1985 with more than 6 months of prior, unverified service. Additionally, the Veteran had subsequent, unverified service in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded this case for further development in May 2009, November 2010, and March 2012. The Board's remand instructions and the subsequent actions by the VA Appeals Management Center (AMC) will be further discussed below. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. While the Board sincerely regrets the delay, the appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board recognizes that the Veteran's claim has been remanded several times for evidentiary development. Because this development has not been adequately completed, and in order to afford the Veteran appropriate due process, the Board must remand the claim again. The Board sincerely regrets the delay. As was noted in the March 2012 Remand, further clarification of the Veteran's service is necessary. The term "active duty for training" (ACDUTRA) includes, "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)(A) (West 2002); 38 C.F.R. § 3.6(c)(1) (2012). The term "inactive duty for training" (INACDUTRA) includes, "duty (other than full-time duty) prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law" or "special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service ) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A),(B) (West 2002); 38 C.F.R. §3.6(d)(1),(2) (2012). As noted in the Introduction, the Veteran had active duty in addition to her periods of service in the Army Reserve, and therefore, is a "Veteran" under the law. However, the dates and type(s) of service (ACDUTRA/INACDUTRA) are not of record. Service connection may be established for a disease or injury incurred or aggravated in line of duty during a period of ACDUTRA; however, service connection may be established for an injury (not a disease) incurred or aggravated in line of duty during a period of INACDUTRA. In the present case, it appears that the Veteran's current kidney disorder may have had its onset as a disease during the Veteran's unverified Reserve service, and thus, whether the Veteran was serving on ACDUTRA or INACDUTRA during the initial manifestation of the disease is crucial. In particular, an April 1986 Report of Medical History completed by the Veteran at the time of a quadrennial examination shows that she reported no history of kidney stones or issues with her urine. On June 21, 1987, a record of emergency care shows that the Veteran was experiencing swelling in her legs, frequent urination for the prior two weeks, and she reported a history of kidney problems. Urinary tract infection and "poss kidney infection" were noted. A June 24, 1987 progress note shows that she was "seen in the field 21 June [with] symptoms of lower abdominal pain." Another June 24, 1987 note shows that the Veteran was "in for kidney problem" and she was again noted to have a urinary tract infection. A July 1989 Report of Medical History at the time of another quadrennial examination notes a history of kidney stone in 1987 with no sequelae. Because of these notations in the service treatment records, it is imperative to a fair decision on this claim that the Board know the type of service the Veteran was engaged in at the time of this treatment "in the field." The March 2012 Board remand ordered the RO or AMC to request verification of the dates the Veteran service in the United States Army Reserve, to include the dates for each period of ACDUTRA and INACDUTRA. "The RO/AMC should prepare a summary of such dates." Following the Board's remand, the AMC obtained a copy of the Veteran's service personnel records and obtained a VA examiner's opinion as to the claim. The AMC failed to comply with the Board's remand instructions as it relates to determining the Veteran's dates of ACDUTRA and INACDUTRA. The AMC did not verify such dates and did not provide the required summary. Again, it is essential that the Board know the type of service the Veteran was engaged in, especially from June 21, 1987, to June 24, 1987. Because these remand directives were not complied with, an additional remand is regretfully required. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). If, once this remand instruction is complied with, it is determined that the Veteran was engaged in active duty or ACDUTRA during a time period where it is shown that she experienced symptoms related to her kidneys, to include in June 1987, then the matter must be returned to the VA examiner that completed the March 2012 VA examination for an addendum opinion based upon all relevant evidence in the claims file. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's unit, and any other appropriate location, to request verification of the dates the Veteran served in United States Army Reserve to include the dates for each period of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) that she attended as well as all periods of active duty service. The RO/AMC should prepare a summary of such dates. In particular, the RO/AMC must make a determination as to the type of service the Veteran was engaged in between June 21 and June 24, 1987. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action to be taken. All efforts to obtain these records should be memorialized in the Veteran's VA claims file. 2. Once the above remand directive is substantially complete, if and only if it is shown that the Veteran was either on active duty or ACDUTRA between June 21 and June 24, 1987, the RO/AMC must return the claims files to the VA examiner that conducted the March 2012 VA examination for an addendum opinion. The examiner must, based upon this information, provide an opinion as to whether either the diagnosed chronic renal disease, or nephrolithiasis are at least as likely as not the result of an injury or disease occurring during the Veteran's active duty (August 1981 to August 1985) or a period of ADCUTRA (as provided by the RO/AMC). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear 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. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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). 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). _________________________________________________ L.M. BARNARD Acting 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).