Citation Nr: 1331692 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-19 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating higher than 30 percent for residuals of a nephrectomy with partial adrenalectomy. 2. Entitlement to a rating higher than 10 percent for a residual left flank scar. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to July 1956. He appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claims, the Veteran testified at a videoconference hearing in July 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing has been associated with the claims file. During the course of his hearing testimony, the Veteran also made statements suggesting his service-connected low back disability had worsened. He said he has constant low back pain, especially with lifting and any other physical activity, which ranges in severity and intensity from 6/10 to as bad as 8-9/10. He added that he now also has "aching" up and down his leg, so possible radiculopathy. He has had a 10 percent rating for this low back disability effectively since February 27, 2009, so the issue of his entitlement to an increased rating for this disability has been raised. This additional claim, however, has not been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ), so the Board does not presently have jurisdiction to consider it, therefore is referring this additional claim to the RO for appropriate action. A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. These claims at issue for higher ratings for the residuals of a nephrectomy with partial adrenalectomy and residual left flank scar require further development before being decided on appeal. So the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. Please also note the Board has advanced the appeal of these claims on the docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The most recent examination for the Veteran's nephrectomy residuals was in January 2011, so nearly 3 years ago. VA treatment records since dated in September 2012 noted the presence of protein in the urine and abnormal microalbumin levels, which were indicative of damage to the kidneys, albeit because of diabetes. Nevertheless, these findings, especially when viewed in the context of the rating criteria for the Veteran's service-connected condition, suggest his disability may have worsened since his last VA compensation examination. He testified during his recent July 2013 hearing that he has to take high blood pressure medication on account of hypertension, that he wears a "pee pad" (diaper), and that he takes Flonase medication to improve his urine flow. He therefore needs to be reexamined to reassess the severity of the residuals of his nephrectomy and partial adrenalectomy. As for his residual left flank scar, his last VA examination for this associated service-connected disability was in July 2011, so still more than 2 years ago. Consequently, another VA compensation examination is needed concerning this other service-connected disability, as well. And as these claims are being returned to the RO via the AMC for the conducting of these additional examinations, the Veteran's most recent VA treatment records also should be obtained, and he should be advised that he also may submit additional private evaluation and treatment records in support of his claims. 38 C.F.R. § 3.159(c). Accordingly, these claims are REMANDED for the following additional development and consideration: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Advise the Veteran that he may submit additional private treatment records in support of his claims, but that he needs to provide VA sufficient information to obtain these additional records and authorization to do so since they are confidential. 2. Also obtain his VA treatment records, if relevant to these claims, for all additional evaluation and treatment he has received since May 2013. 3. Upon receipt of all additional records, schedule an appropriate VA compensation examination reassessing the severity of any renal dysfunction associated with his nephrectomy and partial adrenalectomy and the residual left flank scar. The claims file, including a complete copy of this REMAND, must be made available to the examiner for review of the pertinent history, and the examination report should reflect that such review was completed. The VA examiner should perform all necessary diagnostic testing and evaluation, including urinalysis, and should describe the current manifestations of renal dysfunction. The medical findings must be set forth in terms conforming to the applicable rating criteria of 38 C.F.R. § 4.115a relating to renal dysfunction. Regarding the residual left flank scar, there needs to be description of the current manifestations of the scar, including the size of the scar, functional impairment associated with the scar, and whether the scar is deep, unstable, painful or otherwise symptomatic. 4. Ensure the examination report is responsive to the remand instructions. If not, take corrective action to avoid another remand of these claims. 38 C.F.R. § 4.2. 5. Then readjudicate these claims in light of this and all other additional evidence. If higher ratings for these service-connected disabilities are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN 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) (2013).