Citation Nr: 1339489 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 09-03 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a kidney disability. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In January 2011, the Board remanded this case for additional development, and the case has been returned for further appellate review. The Board has recharacterized the issue on appeal, formerly claimed as entitlement to service connection for kidney stones, to more broadly encompass any kidney disability with which the Veteran may currently be diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (providing that when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In his January 2009 substantive appeal, the Veteran requested a Board hearing at his local RO. In May 2009, the Veteran submitted notice to the RO that he no longer wanted a hearing. Therefore, the request for a Board hearing at the RO is deemed withdrawn and the Board will continue with the appeal. See 38 C.F.R. § 20.704(d) (2013). 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 After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim of entitlement to service connection for a kidney disability. The Veteran contends that he has a current kidney disability, claimed as kidney stones, that first arose during his military service. In his May 2006 claim, he reported that he began having kidney stones while serving in Vietnam and that he was treated at an Army hospital in Vietnam. He reported that he has had several episodes of kidney stones since Vietnam. He reported that he underwent inpatient treatment for the disorder while on active duty, specifically noting that he was treated for this disorder while stationed in Qin Yong, Vietnam, between October and December of 1970. The Veteran's service treatment records do not reflect that he ever complained of or sought treatment for symptoms associated with his kidneys during service. VA's attempts to obtain inpatient hospitalization records following the last remand were unsuccessful. Nonetheless, the Veteran has competently reported that he was hospitalized for kidney stones during service. He has also submitted medical records from as early as May 1976 noting that he had received private medical treatment for ureteral and renal calculi, and a June 1976 private consultation letter notes that the Veteran "has passed a ureteral calculus in the past." Private medical records reflect numerous instances of relevant treatment between May 1976 and November 1978. The claims file also contains an April 1997 private treatment record noting that the Veteran "has a history of kidney[] stones back in 1972 and 1976." The Veteran has submitted current medical records reflecting that he was treated for kidney stones in August 2003 and September 2003, and that he was found to have a cortical cyst on the right kidney on sonogram in January 2006. Given the evidence outlined above, the Veteran should now be afforded a VA examination with a medical opinion clarifying whether the Veteran has a current kidney disorder, including kidney stones, that arose during service or is otherwise related to any incident of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While this case is on remand, the Veteran should be given the opportunity to identify any relevant medical records, and all appropriate steps to obtain such records should be completed. The Board notes, in particular, that the June 1976 private medical record noted above mentions that the Veteran "has passed a ureteral calculus in the past" and that the April 1997 treatment record noted above indicates that the Veteran "has a history of kidney[] stones back in 1972 and 1976." The Veteran should be asked to identify any outstanding medical evidence from prior to May 1976 that he wishes for VA to attempt to obtain. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for a kidney disability. The Veteran should specifically be asked to provide such information for any relevant treatment he received prior to May 1976. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. Following completion of the above, schedule the Veteran for a VA examination to obtain a medical opinion as to whether he has a current kidney disability that is related to his period of service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current kidney disability arose during service or is otherwise related to any incident of service. For purposes of this opinion, the examiner should consider the Veteran's lay statements concerning having had kidney stones in service to be credible. The examiner should provide a rationale for the conclusions reached. 3. After the development requested above, and any additional development deemed necessary has been completed to the extent possible, the record should be reviewed and the claim readjudicated. If the benefit sought on appeal is denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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. 2013). _________________________________________________ JENNIFER HWA Acting 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).