Citation Nr: 1333217 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-28 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right kidney disorder, to include as secondary to service-connected left nephrectomy with normal right kidney with scar. 2. Entitlement to service connection for a right hip replacement, to include as secondary to a right kidney disorder. 3. Entitlement to service connection for a left hip replacement, to include as secondary to a right kidney disorder. 4. Entitlement to service connection for a right shoulder replacement, to include as secondary to a right kidney disorder. 5. Entitlement to service connection for a left shoulder replacement, to include as secondary to a right kidney disorder. 6. Entitlement to service connection for a left knee replacement, to include as secondary to a right kidney disorder. 7. Entitlement to service connection for bilateral toes replacement, to include as secondary to a right kidney disorder. 8. Entitlement to a rating in excess of 30 percent for service-connected left nephrectomy with normal right kidney with scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2009 and January 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2010, the Veteran and his spouse testified before a Decision Review Officer (DRO) during a hearing at the RO. A transcript of the hearing has been associated with the claims file. During the hearing, the Veteran withdrew a claim for service connection for the right knee and explained that the right knee had not been replaced (see transcript at p. 2). The Board notes that the February 2011 statement of the case and the April 2013 supplemental statement of the case did not adjudicate this issue and that it was never perfected for an appeal. Thus, it is not listed above as one of the issues on appeal. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for bilateral toes and for a higher rating for left nephrectomy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has a currently diagnosed right kidney disability. 2. The evidence of record does not show that any currently diagnosed right hip disorder is etiologically related to the Veteran's period of active service nor proximately due to, the result of or chronically aggravated by his service-connected left nephrectomy disorder. 3. The evidence of record does not show that any currently diagnosed left hip disorder is etiologically related to the Veteran's period of active service nor proximately due to, the result of or chronically aggravated by his service-connected left nephrectomy disorder. 4. The evidence of record does not show that any currently diagnosed right shoulder disorder is etiologically related to the Veteran's period of active service nor proximately due to, the result of or chronically aggravated by his service-connected left nephrectomy disorder. 5. The evidence of record does not show that any currently diagnosed left shoulder disorder is etiologically related to the Veteran's period of active service nor proximately due to, the result of or chronically aggravated by his service-connected left nephrectomy disorder. 6. The evidence of record does not show that any currently diagnosed left knee disorder is etiologically related to the Veteran's period of active service nor proximately due to, the result of or chronically aggravated by his service-connected left nephrectomy disorder. CONCLUSIONS OF LAW 1. A right kidney disorder was not incurred in or aggravated during active service, is not presumed to have been incurred in service, nor is it the result of or aggravated by the Veteran's left nephrectomy. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A right hip replacement was not incurred in or aggravated during active service, is not presumed to have been incurred in service, nor is it the result of or aggravated by any kidney disorder. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. A left hip replacement was not incurred in or aggravated during active service, is not presumed to have been incurred in service, nor is it the result of or aggravated by any kidney disorder. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 4. A right shoulder replacement was not incurred in or aggravated during active service, is not presumed to have been incurred in service, nor is it the result of or aggravated by any kidney disorder. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 5. A left shoulder replacement was not incurred in or aggravated during active service, is not presumed to have been incurred in service, nor is it the result of or aggravated by any kidney disorder. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 6. A left knee replacement was not incurred in or aggravated during active service, is not presumed to have been incurred in service, nor is it the result of or aggravated by any kidney disorder. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the VCAA are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the Veteran in letters from the RO dated in May 2009 and November 2009. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. Thereafter, the rating decisions now on appeal and dated in July 2009 and January 2010 were issued. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the correspondence dated in May 2009 and November 2009. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal decided herein have been met. The duty to assist also has been fulfilled in this case. Private and VA medical records were requested or obtained. During his RO hearing, the Veteran testified about post-service treatment at various VA facilities and the Fitzsimmons Army Medical Center in Denver, Colorado. A January 2011 memorandum in the claims file shows that the service department could not locate any medical records from Fitzsimmons from the 1964 to 1966 time period. In addition, the Veteran failed to respond to letters dated in October 2010 and December 2011 requesting more specific dates of treatment at the Shreveport VA Medical Center and the Dallas VA Medical Center, respectively, during the early 1970s. Thus, the record indicates that VA made reasonable efforts to obtain any relevant treatment records. The Court has held that VA's "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran also was provided with an adequate VA medical opinion of the claims decided herein. In addition, the Veteran was provided the opportunity to testify before a DRO during his RO hearing about his claims. The Board finds that the available evidence is sufficient for an adequate determination of the claims decided herein. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including nephritis and arthritis, become manifest to a degree of 10 percent or more within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & 2012); 38 C.F.R. §§ 3.307, 3.309. Generally, in order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Nephritis and arthritis are chronic diseases. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Right Kidney The Veteran seeks service connection for a right kidney disorder. He contends that the condition of his right kidney deteriorated over the years because of his service-connected left nephrectomy. Service treatment records do not show treatment for a right kidney disorder. A November 1955 urogram indicated that the right kidney functioned adequately and was normal. A February 1956 service treatment record showed a left nephrectomy in January 1956 for congenital kidney hypoplasia that had been aggravated by service. While a December 1956 service treatment record noted pain in the right kidney, subsequent December 1956 service treatment records indicated that about three months before he began having right-sided pains that paralleled earlier left-sided pains that led to his left nephrectomy. It was noted that his father died the previous year of a chronic renal condition that was apparently undiagnosed. Testing showed a well-functioning right kidney and the examiner reported there was little evidence of any right renal pathology. A subsequent examiner also noted there was no kidney pathology. Post-service, a January 1961 employment physical suggested that the right kidney was about twice the normal size. The private physician concluded that the right kidney had good function and showed compensatory hypertrophy (i.e., bulk). A February 1961 VA examination and chest X-ray showed a normal right kidney. A January 1973 VA hospital report indicated that there was no right kidney pathology found in December 1972 when the Veteran had been hospitalized and examined at the VA hospital in Shreveport, Louisiana, in connection with a higher rating claim for his left kidney disorder. A July 1992 private medical record noted prompt excretion from the right kidney after an intravenous administration of contrast during testing. Diagnoses included a morphologically normal right kidney with a normal right ureter. In December 2009, a VA physician developed a medical opinion regarding the Veteran's claims on appeal. After review of the claims file and the June 2009 fee-basis VA examination, the VA physician reported that the Veteran had normal renal function and that there was no medical evidence of any abnormality of the right kidney. Therefore, in his view, it was less likely than not that the Veteran had a right kidney disorder secondary to his service-connected left nephrectomy. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C.A. § 1131 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no medical evidence that the Veteran has ever been diagnosed with a right kidney disability since the Veteran was discharged from active duty in August 1957. The medical evidence cited above shows a normal right kidney in spite of testimony by the Veteran and his representative that the right kidney was trying to do the job of two kidneys and was not fully eliminating his uric acid. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is competent and credible to describe the current manifestations of his claimed kidney disorders because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, to the extent that the Veteran and his representative have contended that he has a current right kidney disability, the Board finds such statements to lack competency. Neither the Veteran nor his representative possesses the medical expertise to diagnose a right kidney disability separate and distinct from the residuals of his in-service left nephrectomy. The medical opinion of the December 2009 VA examiner underscores the complexity of the medical question involved here and that a lay opinion is insufficient to diagnose a right kidney disorder in this case. The totality of the evidence also does not show that the Veteran currently has any right kidney disorder. Thus, the Veteran's lay assertion of a current right kidney disability lacks competency in light of the other evidence of record and is, in fact, outweighed by this evidence. As there is no evidence of a current disability of the right kidney, direct, presumptive, or secondary service connection cannot be granted for this claim as the Veteran does not manifest a current disability. See 38 C.F.R. § 3.303; Hickson, 12 Vet. App. at 253. For the foregoing reasons, the claim for service connection for a right kidney disorder, to include as secondary to service-connected left nephrectomy, must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The appeal is denied. Hips, Shoulders, and Left Knee The Veteran seeks service connection for bilateral hip replacement, bilateral shoulder replacement, and left knee replacement. It is not clear from his September 2009 claim whether he thought these claims were all secondary to his service-connected left nephrectomy or to what he claimed was a right kidney disability that should also be service connected. The RO proceeded to adjudicate these claims by considering whether service connection for each could be secondary to either the right kidney (ultimately not service connected) or to the (service-connected) left kidney. Service treatment records are negative for any complaints of, or treatment of, the Veteran's hips, shoulders, or left knee. Post-service, a February 1961 VA examination failed to note any musculoskeletal abnormalities, except for the scar associated with the Veteran's left nephrectomy. VA treatment records associated with the claims file show the Veteran had undergone bilateral shoulder, hip, and left knee replacements. (See, i.e., past surgical history listed in VA medical record dated in April 2010.) As noted above in the discussion of the VCAA, medical records from the past that would have shown these surgeries and treatments were unavailable or could not be located for this appeal. A June 1982 VA medical record noted degenerative joint disease of the right hip with chronic hip pain. A July 1982 VA medical record noted right hip and groin pain for five years. The Veteran underwent a VA examination in April 2002. The examiner noted the Veteran's various orthopedic problems and observed that he was more or less confined to a chair or a wheelchair and was only able to ambulate using his electric wheelchair. Diagnosis was peripheral vascular disease with a history of slowly healing ulcerations and minimal varicosities. The VA physician opined that the Veteran's conditions in the lower extremities were the result of poor circulation and were not related to the removal of a congenital hypoplastic kidney in service. A September 2004 VA medical record indicated that the Veteran received a right hip prosthesis in 1982. A January 2009 VA medical record indicated that the Veteran underwent bilateral shoulder replacement in the 1990s. According to a March 2009 VA medical record the Veteran reported prior left knee replacement, bilateral hip replacements, and bilateral shoulder surgeries. A July 2009 VA medical record noted the Veteran's degenerative joint disease. In December 2009, a VA physician provided a medical opinion on the secondary service connection theory of the Veteran's claims on appeal. After reviewing the claims file, the VA physician noted that the Veteran had been diagnosed with degenerative joint disease of multiple joints, including the shoulders, hips, and knees. He said there was no evidence of osteomyelitis or septic arthritis and that there was no recognized connection between a history of urinary tract infections and later development of arthritis. The VA physician also listed a dozen risk factors linked to osteoarthritis that had been identified in epidemiological studies. Therefore, he concluded that it was less likely than not that the Veteran's multiple joint replacements were due to the Veteran's service-connected nephrectomy or any complications therefrom. An April 2010 VA medical record revealed same-day surgery on the right shoulder for subacromial decompression, distal clavicle excision, and possible rotator cuff repair. A July 2010 VA medical record indicated that the Veteran initially had a right total shoulder arthroplasty in the late 1980s. During his October 2010 RO hearing, the Veteran's representative suggested that the many joint replacements began somewhere between 1980 and 1982 (see hearing transcript at p. 7). The Veteran testified he thought his right shoulder had to be replaced because of gout, rather than arthritis. He also explained that his joints "were in pretty bad condition long before I had them replaced." Id. He and his representative suggested their theory of secondary service connection was based on the right kidney not fully removing the uric acid which then built up in the joints causing erosion and the need for replacement. Id. Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims that any current hip, shoulder, or left knee disorder was incurred as a result of any established event, injury, or disease during active service. The Board notes that there is no medical evidence of any of these claimed disorders during active service. Medical records associated with the claims file do not show joint replacement until the early 1980s at the earliest for some of these conditions, or more than 23 years after discharge from service. The Board notes that the passage of significant time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In view of the brief time spent in service, and the lengthy period following service without a showing of any of these claimed disorders, there is no evidence of continuity of symptomatology, and this weighs against the Veteran's claims as well. Moreover, the Veteran has not provided any competent medical evidence to demonstrate that any current disorder of the hips, shoulders, or left knee was caused by or was a result of his period of service. The December 2009 VA examiner did not suggest such a connection in his review of the claims file and the Board's review of the claims file has not disclosed that any physician has suggested the same. In essence, there is no competent medical opinion of record etiologically relating the Veteran's currently diagnosed joint replacements to his military service. See Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson, 12 Vet. App. at 253. In addition, presumptive service connection is not warranted for these claims for service connection because there is no evidence in the record that the Veteran was diagnosed with arthritis of the hip, shoulder, or left knee within 12 months of being discharged from active duty in August 1957. The Board notes further that secondary service connection is not warranted for these claims for several reasons. As noted above, the Veteran asserted that these joint disorders were due to his right kidney disorder. The Board has decided in this decision against a grant of service connection for a right kidney disorder (see above). The Veteran may not be awarded secondary service connection based on a disorder that is not already service connected. See 38 C.F.R. § 3.310. In addition, the RO considered whether these claims could be secondary to residuals of the Veteran's service-connected left nephrectomy. The December 2009 VA medical opinion found that it was less likely than not that any of the Veteran's hip, shoulder, or left knee replacements were due to residuals of his service-connected left nephrectomy because there was no evidence of osteomyelitis or septic arthritis. Therefore, service connection for these joint replacement claims on a direct, secondary, or presumptive basis is not available in this case. In addition to the medical evidence, the Board has considered the assertions that the Veteran and his representative have advanced in connection with this appeal. The Board finds that the Veteran is not competent to diagnose his medical conditions or state they were caused by certain agents as these are medical matters and not factual matters as he is not shown to have the requisite medical training. The Board does not doubt the sincerity of the Veteran's belief that his claimed disorders are the result of complications arising originally from the removal of his left kidney in service more than half a century ago. However, questions of medical diagnosis and causation are within the province of medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). As the Veteran and his representative are lay persons without the appropriate medical training or expertise, they are not competent to render a probative or persuasive opinion on medical matters. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (layperson is generally not capable of opining on matters requiring medical knowledge). Consequently, the lay assertions as to the etiology of his hip, shoulder, and left knee disorders have no probative value. For the foregoing reasons, the claims for service connection for right hip, left hip, right shoulder, left shoulder, and left knee replacements, all to include as secondary to a right kidney disorder, must be denied. In arriving at the decision to deny these claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a right kidney disorder, to include as secondary to service-connected left nephrectomy with normal right kidney with scar, is denied. Service connection for a right hip replacement, to include as secondary to a right kidney disorder, is denied. Service connection for a left hip replacement, to include as secondary to a right kidney disorder, is denied. Service connection for a right shoulder replacement, to include as secondary to a right kidney disorder, is denied. Service connection for a left shoulder replacement, to include as secondary to a right kidney disorder, is denied. Service connection for a left knee replacement, to include as secondary to a right kidney disorder, is denied. REMAND Unfortunately, a remand is required for the two remaining issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Concerning the Veteran's claim for service connection for bilateral toes replacement, to include as secondary to a right kidney disorder, the Board notes that the December 2009 VA medical opinion failed to make any reference to the Veteran's toes complaint. Instead, the VA physician who reviewed the June 2009 fee-basis VA examination and the claims file specifically noted the following alleged disorders in his December 2009 report: right kidney, bilateral shoulders, bilateral hips, and bilateral knees. The Board's review of the Veteran's claims file and eFolder discloses few medical records concerning the Veteran's toes. For example, July 2009 VA medical records noted that the Veteran previously had foot surgery for hammertoe and followed up with an outside specialist and that he had had a toe infection as a complication from foot surgery. An April 2010 VA medical record noted a past surgical history for open reduction internal fixation of the right great toe and closed reduction and percutaneous pinning of the right little toe. A November 2010 VA medical record suggested the prosthetics department request diabetic shoes and socks for the Veteran. Therefore, the Board finds that the December 2009 VA medical opinion must be found inadequate as it pertains to the Veteran's service connection claim for the toes. On remand, the Veteran should be provided an examination and medical opinion to determine whether there is any current disability of any of the toes and, if so, whether such is related to service or secondary to a service-connected disability. Concerning the Veteran's claim for a higher rating for his service-connected left nephrectomy with normal right kidney with scar, the Board notes that the Veteran's representative persuasively argued in her March 2011 brief that the last prior VA examiner in June 2009 did not have access to the claims file so a thorough and contemporaneous medical examination was not provided with which to adjudicate this claim. The Board's review of the June 2009 fee-basis VA examination report strongly suggests that the reviewing physician did not have access to the claims file. For example, he wrote in two places that the Veteran was not on medication for hypertension. However, a December 2008 VA treatment record associated with the claims file shows that the Veteran was taking three separate medications for hypertension: Atenolol, Doxazosin mesylate, and Lisinopril. The Veteran also pointed this out in his Notice of Disagreement. A review of the claims file also would have shown the June 2009 examiner that the Veteran had been service connected for hypertension since a June 2002 rating decision. The Board further notes that blood pressure readings with diastolic pressure predominately 120 or more is one of the rating criteria for a higher rating for removal of one kidney, pursuant to Diagnostic Code 7500. See 4.115a, Ratings of the genitourinary system-dysfunctions, and 4.115b, Ratings of the genitourinary system-diagnoses (2012). The Board also notes that the Veteran's most recent VA examination of the left kidney was in June 2009 and is now four years old, and that it is appropriate that his most recent symptoms be evaluated. On remand, a new examination should be obtained to determine the current severity of the Veteran's left nephrectomy with normal right kidney with scar disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the claims file or the Veteran's eFolder all relevant VA or private medical records related to his claimed bilateral toes disorder and his service-connected left nephrectomy with scar disorder that may be identified by the Veteran that are not already of record. In particular, the Veteran should be encouraged to provide the name and address of the specialist noted in the July 2009 VA medical record who performed and followed up his hammertoe surgery. 2. After the above has been accomplished, the Veteran should be afforded an appropriate VA examination of the bilateral toes to determine the nature and etiology of any disorder. All indicated tests and studies are to be performed. In connection with the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner shall address the following opinion requests: (a) Whether any disability of the toes is currently manifested and, if so, a diagnosis of that (those) disorder(s) should be made; and (b) Whether it is at least as likely as not (a 50 percent probability or more) that any such currently manifested toes disorder(s) is (are) etiologically related to the Veteran's period of active duty from August 1955 to August 1957. (c) If not, whether it is at least as likely as not that any currently diagnosed toes disorder(s) was (were) caused or aggravated by his service-connected left kidney disorder or his service-connected hypertension disorder. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development requested in paragraph 1 is accomplished, the Veteran should be scheduled as well for a VA compensation examination to reassess the severity of his left nephrectomy with normal right kidney with scar disability. All necessary testing and evaluation should be performed. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner. The examiner needs to provide specific findings addressing the rating criteria listed under 38 C.F.R. §§ 4.114a and 4.114b for rating the removal of one kidney found at Diagnostic Code 7500 (2012), including any relevant findings pertinent to the Veteran's hypertension and blood pressure readings. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Then readjudicate the claims in light of any additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. 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). 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs