Citation Nr: 1337183 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-21 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a kidney disorder. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1959 to October 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for kidney failure. In November 2008, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in June 2009. In July 2012, the Veteran presented sworn testimony during a Travel Board hearing in Philadelphia, Pennsylvania, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND After a thorough review of the claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for a kidney disorder. The Veteran was afforded a VA examination to evaluate his kidney disorder in October 2007. The examiner concluded that the Veteran's chronic renal failure was due to his diabetes mellitus, type II (DM), and hypertension, not his military service, including his in-service pyelonephritis. He explained that there was no evidence of a kidney disorder until the Veteran's 1985 DM diagnosis and that this 40 year gap between his service and his kidney diagnosis did not support a medical nexus. In support of his claim, the Veteran has submitted a September 2009 private positive nexus opinion from Dr. S. H. B. In her letter, Dr. S. H. B. concluded that there was a strong possibility of a connection between the Veteran's military service and his current kidney problems. Specifically, she noted that the Veteran's in-service tonsillitis may have been strep throat caused by the strain of strep that can cause acute glomerulonephritis and/or the sulfa drugs given to the Veteran at the time of his August 1963 in-service treatment may have caused interstitial nephritis. She opined that either or both of these conditions may have caused the Veteran's kidney disease many years later. Dr. S. H. B., however, failed to address the Veteran's diagnoses of DM and hypertension and whether these may have caused his kidney problems. As such, her opinion alone is not sufficient to grant service connection. Although the private positive nexus opinion is not sufficient on its own to grant service connection, the Board finds that a new VA examination to address Dr. S. H. B.'s theory is warranted. The October 2007 VA examiner did not address the role of possible strep throat or use of sulfa drugs in service when providing his opinion. As such, the October 2007 VA examination is inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to service connection for a kidney disorder must be remanded for new VA examination and opinion. The Board's review of the record also reflects that there may be outstanding VA treatment records. At his July 2012 Board hearing, the Veteran testified that he was treated for kidney infections at the VA Medical Center (VAMC) in Washington, DC in 1972. Additionally, the Veteran indicated in a February 2010 statement that he was treated at the Washington, DC VAMC in 1981 for a kidney infection. The claims file is negative for any VA treatment records. VA has an obligation to associate all relevant records in VA's possession with the claims file of a veteran. 38 C.F.R. § 3.159 (2013). The case must also be remanded to attempt to obtain any such records. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records from the Washington, DC VAMC and any other VA facilities identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his kidney disorder. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. For the Veteran's currently diagnosed end-stage kidney disease, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the disability had its onset in service or is otherwise etiologically related to his active service, including whether it is related to tonsillitis and/or use of sulfa drugs in service. The examiner should specifically address the October 2007 VA examination and the September 2009 private positive nexus opinion. 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(s). 3. After completing the above actions, the Veteran's claim of entitlement to service connection for a kidney disorder should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that his failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).