Citation Nr: 1326702 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-19 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a chronic kidney disorder, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a rating decision of March 2010, the RO granted entitlement to service connection for Type II diabetes mellitus (with erectile dysfunction). Accordingly, that issue, which was formerly on appeal, is no longer before the Board. This was on a presumptive basis as appellant served in Vietnam and herbicide exposure is presumed. This case was previously before the Board in April 2011, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. Review of Virtual VA reveals no medical records are currently associated therewith. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the etiology of the Veteran's chronic kidney disease. In that regard, following VA examinations in March 2010 and August 2011, it was the opinion of a VA examiner that the Veteran's current kidney disease was unrelated to his service-connected diabetes mellitus. While in May 2013, an independent medical examiner furnished a similar opinion that the Veteran's chronic kidney disease was less likely than not related to his diabetes mellitus, an opinion has yet to be offered specifically as to whether the Veteran's kidney disease has in some way been aggravated(permanently made worse) by service-connected diabetes mellitus. Significantly, the Veteran's accredited representative has argued that, should it ultimately be determined that the Veteran's kidney disease is not, in fact, causally related to his service-connected diabetes mellitus, it must, at a minimum, have been aggravated by that diabetes mellitus. Under the circumstances, the Board is of the opinion that further development of the evidence is necessary prior to a final adjudication of the Veteran's claim. Accordingly, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to May 2013, the date of the aforementioned independent medical opinion, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran's entire claims folder should then be furnished to the same VA examiner who conducted the aforementioned VA examinations in March 2010 and August 2011, or to some other appropriate VA examiner, should that physician prove unavailable. Following a review of the Veteran's entire claims folders, that examiner should offer an addendum opinion as to whether the Veteran's current kidney disease has at least as likely as not (50 percent probability or higher) been aggravated (i.e., increased in severity beyond natural progress) by the Veteran's service-connected diabetes mellitus. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. In addition, the examiner must specify in his report that the claims files been reviewed. 3. The RO/AMC should then review the addendum report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for service connection for chronic kidney disease, to include as secondary to service-connected diabetes mellitus. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in March 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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 D. LYON 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).