Citation Nr: 1327374 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-46 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a kidney disability, to include as secondary to service-connected lymphocytic colitis with celiac sprue disease. 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected lymphocytic colitis with celiac sprue disease. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from February 1996 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The claims file was subsequently transferred to the VA RO in St. Petersburg, Florida. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. Relevant evidence has been added to each claims file since the most-recent supplemental statement of the case (SSOC) dated in December 2009. Nevertheless, the Board has considered the new evidence pursuant to the representative's July 2013 waiver of initial review of the evidence by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 19.31, 20.1304(c) (2012). The Board notes that, in January 2008, the RO granted service connection for lymphocytic colitis with celiac sprue disease, rating the disease as 10 percent disabling effective the Veteran's date of claim in June 2007. The Veteran filed a notice of disagreement (NOD) against the assigned rating, stating that the disorder should be rated as 50 percent disabling. In September 2009, the RO granted the Veteran's request in full by rating the disorder as 50 percent disabling, effective June 2007. AB v. Brown, 6 Vet. App. 35, 39 (1993). Neither the Veteran nor her representative has expressed continued disagreement with that rating. As such, the Board does not view the issuance of a Statement of the Case (SOC), in response to the May 2008 NOD, as necessary. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Nevertheless, the Board will refer to the AOJ for appropriate action an issue regarding a total rating based on individual unemployability due to service-connected disability (TDIU). This issue has been raised by the record in statements by the Veteran and in statements by medical professionals (see e.g., January 2009 VA compensation examination report and September 2007 letter from a private physician). As the issue has not been adjudicated by the AOJ, the Board does not have jurisdiction over the issue. The claim to service connection for an acquired psychiatric disorder 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 evidence is in relative equipoise as to whether the Veteran's current kidney disabilities, diagnosed as kidney stones and chronic renal insufficiency, are related to her active duty. CONCLUSION OF LAW Service connection for kidney disabilities, diagnosed as kidney stones and chronic renal insufficiency, is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that she has kidney disabilities, namely kidney stones and kidney failure, which are related to her service-connected lymphocytic colitis with celiac sprue disease. Since her claim is being granted based on a direct service connection theory of entitlement, no further discussion is required regarding the secondary service connection theory. 38 C.F.R. § 3.310 (2012). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence of record, including private treatment records dated between 2002 and 2012 and VA examination reports dated in January 2008 and January 2009, reflect diagnoses of kidney stones, renal failure, and chronic renal insufficiency. The first element of Shedden is therefore satisfied. The second element of Shedden is also established by private evidence of record, dated in May 2002. This evidence notes that, during active duty which ended in March 2003, the Veteran experienced an in-service kidney disease. Specifically, private treatment records dated in 2002 note "acute renal failure." What remains to be established is whether the in-service renal failure relates to the current renal problems. The record contains three medical opinions which either directly or indirectly address the issue. The first opinion is provided by the January 2008 VA physician. The examiner noted that the Veteran had a kidney stone in 2003, which had passed. The examiner stated that the Veteran indicated a history of kidney stone in 2004. The examiner stated that the Veteran's kidney stones were not related to service. The Board notes that the examiner did not discuss the Veteran's in-service renal failure in May 2002. The second opinion is provided by the January 2009 VA physician. This examiner did not expressly address the in-service kidney disease either. The examiner did suggest an in-service interaction between kidney disease and the service-connected lymphocytic colitis with celiac sprue disease by stating that the "kidney condition ... has been aggravated" by malnutrition and frequent dehydration associated with the gastrointestinal disorder. This examiner further stated expressly that the kidney stones and "necrotic right kidney with 15% function is moderately aggravated" by the gastrointestinal disorder. The third opinion is offered by one of the Veteran's private treating physicians, who stated in February 2012 that "[k]idney stone formation and adverse renal affect are directly related to Celiac disease and history of recurrent vol depletion." When considered together, these opinions present evidence in favor of a secondary service connection finding - i.e., the kidney problems relate to service-connected lymphocytic colitis with celiac sprue disease. However, the Board finds a direct service connection finding more appropriate here - onset of the Veteran's kidney dysfunction, perhaps caused or aggravated by lymphocytic colitis with celiac sprue disease, occurred during active duty in May 2002. It is clear that the Veteran had renal failure then along with lymphocytic colitis with celiac sprue disease. And it is clear that the kidney stones, occurring as early as 2003-2004, relate directly to the in-service kidney and gastrointestinal disorders. Thus, the third Shedden element has also been met. Because each of the three Shedden elements has been met, service connection for a kidney disability, diagnosed as kidney stones and chronic renal insufficiency, is warranted. ORDER Service connection for a kidney disability, diagnosed as kidney stones and chronic renal insufficiency, is granted. (CONTINUED ON NEXT PAGE) REMAND A remand is warranted for medical inquiry and development into the Veteran's claim of service connection for an acquired psychiatric disorder. The Veteran claims that stress related to her gastrointestinal problems have caused her to develop depression. The record documents that the RO scheduled the Veteran for a VA compensation examination in September 2008, but that the Veteran could not attend. The record also documents that the Veteran notified the RO of her inability to attend the scheduled examination. The record indicates that the Veteran had good cause to cancel her appointment. On the scheduled examination date, she was not in Maine, but was in Pennsylvania visiting with family - and with her mother who, as a nurse, assisted the Veteran with her problems. 38 C.F.R. § 3.655. The record does not indicate that the Veteran was offered another examination into her claim for service connection for an acquired psychiatric disorder. An examination into the Veteran's claim should be rescheduled at a VA facility near her current residence in Florida. Accordingly, the case is REMANDED for the following action: 1. Include in the claims file any currently outstanding VA treatment records, the most recent of which are dated in November 2009. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any currently diagnosed psychiatric disorder. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner must address the following: a. The examiner must diagnose all current psychiatric disabilities and provide a full multi-axial diagnosis pursuant to the Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM- IV). b. If a diagnosis of a psychiatric disorder is warranted, discuss whether it is at least as likely as not that any currently diagnosed psychiatric disorder was caused or aggravated by any in-service disease, event, or injury. c. The examiner must also provide an opinion as to whether it is at least as likely as not that a diagnosed psychiatric disorder was caused by the Veteran's service-connected kidney disabilities or her service-connected lymphocytic colitis with celiac sprue disease. d. If the examiner finds that a psychiatric disorder was not proximately caused by the service-connected disorders, the examiner must provide an opinion as to whether it is at least as likely as not that a psychiatric disorder has been aggravated (increased in severity beyond the natural course of the disability) by the service-connected kidney disabilities or the service-connected lymphocytic colitis with celiac sprue disease. If the examiner finds that a psychiatric disorder is so aggravated, the examiner must indicate, to the extent possible, the degree of disability over and above the degree of disability that would exist without the aggravation caused by the service-connected kidney disabilities or the service-connected lymphocytic colitis with celiac sprue disease. Please explain the reasons behind any opinions expressed and conclusions reached. The examiner is further reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If the questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. After all the above development has been completed, readjudicate the claim on appeal in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If the issue remains denied, the Veteran should be provided with a SSOC as to the issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs