Citation Nr: 1336263 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-32 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a urinary condition. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from July 2002 to October 2005 and from September 2006 to January 2009. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2009 rating decision of the Philadelphia Department of Veterans Affairs (VA) Regional Office (RO). The July 2009 rating decision also denied entitlement to service connection for right inguinal hernia. Although the Veteran challenged this determination, in a June 2010 rating decision the RO granted service connection for this condition. As such, this issue is not before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service treatment records dated in January 2005 reflect that the Veteran complained of increased nocturia over the previous year. He was assessed with lower urinary tract symptoms (LUTS) with borderline obstructive patterns. In February 2005, the Veteran was assessed with LUTS secondary to bladder neck dysfunction. In August 2008, the Veteran had a history of increased urine output greater than 5 times per day, which was attributed to increased hydration due to weight lifting. The Veteran underwent a VA examination in April 2009 and no urinary obstruction was noted. In January 2010, the Veteran complained of nocturia and polyuria. In an undated statement, the Veteran also reported borderline obstruction pattern and split stream, and stated that his physician recommended an alpha blocker to treat the excess urination. In this case, it is the diagnosis of the Veteran's claimed genitourinary disability is unclear. As such, the Board finds that a VA examination is necessary to adjudicate this claim. In reaching this conclusion, the Board acknowledges that the Veteran is a podiatrist and is thus a medical professional and whose opinion is competent medical evidence and must be considered in the adjudication of this appeal. See Pond v. West, 12 Vet. App. 341, 345 (1999). The record contains an electronic printout indicating that the Veteran failed to report for a urinary tract and bladder VA examination in March 2013. A copy of the notice letter is not present. At the outset, the Board acknowledges that prior to May 2013, the United States Court of Appeals for Veterans Claims (Court) had held that VA was entitled to the presumption of regularity that VA employees had properly discharged their official duty to notify a Veteran of scheduled VA examinations. The presumption of regularity could be rebutted by clear evidence to the contrary. The Court also held that the absence of a copy of notice in the claims file did not constitute clear evidence to rebut the presumption of regularity. Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while this appeal was pending, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). In Kyhn, the Federal Circuit vacated the Court's Kyhn II decision holding that the Court relied upon extra-record evidence to make a finding of fact in the first instance. In light of the Federal Circuit's ruling in Kyhn and the absence of verification that the Veteran received proper notice of the scheduled March 2013 VA examination, additional development is required. The Veteran must be scheduled for an additional VA examination. On remand, a copy of the letter notifying the Veteran of the examination must be physically or electronically associated with the claims file. In this regard, the notice of the VA examination should also notify the Veteran that his claim will be rated based on the evidence of record if he fails to report for the VA examination without good cause. See 38 C.F.R. § 3.655(b) (2013). Additionally, as noted above, the Veteran has stated that his physician recommended an alpha blocker to treat excess urination. There is no indication that a request for these records was made by the RO. They should be sought as they may provide findings and conclusions as to the diagnosis of the Veteran's claimed genitourinary disability. Pertinent VA treatment records must also be physically or electronically associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. The RO should notify the Veteran that he may submit lay statements from himself as well as from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the Veteran's in-service and post-service genitourinary problems and the onset and/or recurrence of the condition. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Ask the Veteran to provide the names and addresses of all health care providers who have treated him for the disability at issue since February 2013, as well as the physician that recommended an alpha blocker to treat excess urination. After securing any necessary authorization, request any relevant records identified that are not duplicates of those already contained in the claims file. The RO must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Additionally, obtain relevant records for the Veteran from the Lebanon and Coatesville VA Medical Centers dated from April 2013 to the present. If any requested records are not available the Veteran should be notified of such. 3. After associating with the claims folder any pertinent outstanding records, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any urinary condition found to be present. The notice of the VA examination should notify the Veteran that his claim will be rated based on the evidence of record if he fails to report without good cause. A copy of the letter notifying the Veteran of the examination should be associated with the claims file. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must also review all records in Virtual VA, and specifically state the date of the last record reviewed in Virtual VA. All indicated studies should be performed and all findings should be reported in detail. If a urinary condition is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not that the urinary condition is related to or had its onset in service, to include the January 2005, February 2005, and August 2008 urinary complaints. The examiner should also address the November 2008 service Report of Medical Assessment in which the health care provider listed the Veteran's complaints and made no mention of a urinary condition. The examiner must also acknowledge and discuss the Veteran's report as to the onset of his symptoms and his medical conclusions as the Veteran is a medical professional. The rationale for all opinions expressed should be provided in a legible report. 4. Then readjudicate the appeal. If the claim remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The appellant 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). _________________________________________________ STEVEN D. REISS 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).