Citation Nr: 1330223 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-25 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a kidney disability, claimed as secondary to service-connected type 2 diabetes. REPRESENTATION Appellant represented by: Eric Wimberger, Attorney ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Statement of the Case (SOC) listed the issues on appeal as: entitlement to an initial compensable evaluation for service-connected cataracts of bilateral eyes and entitlement to service connection for kidney condition as secondary to the service-connected type II diabetes. On his VA Form 9, the Veteran checked the box that indicated: "I have read the Statement of the Case and any Supplemental Statement of the Case I received. I am only appealing these issues." The Veteran did not list the specific issue; however, in the section entitled "Here is Why I think that VA Decided My Case Incorrectly," the Veteran discussed his kidneys. He did not mention his cataracts or eyes. The Board recognizes the case of Evans v. Shinseki, 25 Vet. App. 7 (2011), wherein the United States Court of Appeals for Veterans Claims (Court) held that VA must seek clarification when a submission is ambiguous as to the Veteran's intent. In that case, the appellant checked box 9.A. on his VA Form 9, but then went on to specifically list three of the six issues which had been addressed in the SOC. Unlike in Evans, in this case, the Veteran checked box 9.B., and mentioned his kidneys, not his cataracts or eyes. The RO certified the issue of entitlement to service connection for a kidney disability claimed as secondary to type II diabetes for appeal. Consequently, the issue of entitlement to an initial compensable rating for cataracts of the bilateral eyes was not appealed by the Veteran and is not before the Board. The VA Form 9 reflects that the Veteran did not check any box with respect to whether he wanted a hearing in connection with his appeal. However, he was sent a letter by the Board in May 2013 and was notified that he had 90 days to: "Ask to appear personally before the Board and give testimony concerning your appeal." The Veteran has not responded and, therefore, there is no pending hearing request. 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 Under 38 U.S.C.A. § 7105(a), an appellant "will be accorded hearing and representation rights pursuant to the provisions of this chapter and regulations of the Secretary." VA regulations state that "An appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person." 38 C.F.R. § 20.600 (2012); see also VA Adjudication Procedure Manual, M21-1, Part I, Chapter 5, Section F, Para. 27 (Aug. 4, 2009). This representation includes giving the appointed representative an opportunity to submit argument in support of the claim on appeal. In this case, the Veteran was originally represented by the Wisconsin Department of Veterans Affairs. In January 2013, subsequent to the filing of the substantive appeal and prior to certification of the appeal, VA received a VA Form 21-22a, Appointment of Individual as Claimant's Representative. The Veteran appointed a private attorney, as listed on the title page of this decision, thereby revoking representation by the Wisconsin Department of Veterans Affairs. However, in April 2013, the Veteran's prior representative, Wisconsin Department of Veterans Affairs, submitted a VA Form 646, Statement of Accredited Representative in Appealed Case, and indicated there was no further argument with respect to the appeal. It does not appear that the Veteran's current representative was given the opportunity to provide argument. Because the Veteran's representative has not been given an opportunity to submit argument in support of the Veteran's claim, the claim must be returned to the RO/AMC so that this may be accomplished. See generally 38 C.F.R. § 20.600. The Veteran has been awarded Social Security benefits beginning in July 2012. At the time, the Veteran was 62, i.e., the age at which an individual may first start collecting Social Security benefits based on age. However, it is also possible that the Veteran is receiving Social Security benefits based on disability. As this claim is being remanded, the Board finds that the Social Security Administration (SSA) records must be obtained and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran receives ongoing medical treatment at the Milwaukee, Wisconsin VA Medical Center and associated outpatient clinic in Appleton, Wisconsin. The most recent VA treatment records are dated in June 2010. The Court has held that records generated by VA facilities are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, updated VA treatment records should be obtained and associated with the record. The Veteran was provided two VA examinations in connection with his claim for service connection. The Veteran was first provided a VA examination in March 2010. The March 2010 VA examiner noted that the Veteran had been hospitalized in January 2010 for acute renal failure; but that the Veteran's renal failure "was of sudden onset, with very little warning." The examiner opined that the renal failure was "less than likely as not" the result of diabetes mellitus in cause or aggravation. After the examination, the Veteran submitted private treatment records that show he was again hospitalized for acute renal failure in 2011. As a result, the Veteran was provided another VA examination in July 2012. The July 2012 VA examiner determined that the Veteran did not have chronic renal failure and did not express an opinion as to etiology. The Board finds that the July 2012 examiner's opinion is inadequate. The examiner determined that the Veteran did not have chronic renal failure. However, prior to this determination, it was noted that the Veteran reported that he was hospitalized in 2011 for acute renal failure, but the examiner stated: "I do not have records for that." The claims file at the time of the July 2012 VA examination contained private treatment records dated in October 2011 for treatment of diarrhea with acute renal failure. Therefore, the VA examiner's opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate). Although the March 2010 VA examiner's opinion was adequate, additional medical evidence has been associated with the claims file subsequent thereto. As such, a new VA examination would be helpful in adjudicating the Veteran's claim for service connection. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and request a copy of all materials, to include medical records, related to the Veteran's claim for SSA benefits. Once obtained, associate these records with the claims file. If SSA notifies VA that these records are unavailable, place a copy of this notification in the Veteran's claims file and notify the Veteran. 2. Request updated VA treatment records from the Milwaukee, Wisconsin VAMC and outpatient clinic in Appleton, Wisconsin, from June 2010 to the present. 3. The Veteran should be provided a VA examination to ascertain the nature and etiology of any kidney disability. The claims file should be made available to and reviewed by the examiner in connection with the examination. Any tests deemed medically advisable should be accomplished. Regardless of whether renal failure is present, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that any kidney disability, to include acute renal failure, was caused or aggravated by the service-connected type II diabetes. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. A complete rationale should be given for any opinion provided. 4. Thereafter, the RO/AMC should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and the Veteran's representative (Eric Wimberger) should be provided a supplemental statement of the case (SSOC). The RO/AMC should solicit a completed VA Form 646, or equivalent, from the Veteran's representative prior to recertifying the appeal to the Board. A copy of all correspondence should be included in the claims file for review. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if 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). _________________________________________________ U.R. POWELL 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).