Citation Nr: 1410159 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-28 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a kidney disability, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970, which includes service in the Republic of Vietnam. He received the Combat Infantryman Badge and Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In that decision, the RO denied entitlement to service connection for kidney cancer. In a September 2010 statement (VA Form 21-4138), the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. An informal hearing conference with a DRO was conducted in November 2010 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claims folder. The Veteran testified before the undersigned at a September 2011 videoconference hearing at the RO. A transcript of that hearing has been associated with his claims folder. In addition to the paper claims file, there are Virtual VA and Veteran's Benefits Management System (VBMS) paperless claims files associated with the Veteran's claim. The documents in these files have been reviewed and considered as part of this appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Veteran contends that he has a current kidney disability, to include kidney cancer, which is related to kidney problems that he began to experience in service (i.e. kidney stones) and which have continued in the years since service. He also claims that his current kidney disability is related to his presumed exposure to herbicides in service. In the alternative, he contends that his kidney disability is related to his service-connected malaria. A VA examination was conducted in January 2011 to assess the nature and etiology of the Veteran's claimed kidney disability and he was diagnosed as having renal carcinoma, clear cell type (not sarcoma). The physician who conducted the examination opined that he could not resolve the issue as to whether the Veteran's renal cancer was related to his exposure to herbicides in service without resort to mere speculation. He reasoned that the Veteran was exposed to herbicides in Vietnam, but that his renal cancer was diagnosed as renal cell carcinoma, conventional clear cell type. This cancer is not a soft tissue sarcoma and is not currently on the presumptive list of disabilities related to herbicide exposure. In addition, there was no known medical linkage between renal stones (calculi) or prostatitis to renal cell cancer. The Veteran's cancer occurred several decades after military service. Whether this kind of cancer was related to herbicide exposure was "currently speculation." There was currently no known solid evidence of cause and effect. The January 2011 opinion is insufficient because the examiner did not provide any opinion as to whether the Veteran's current kidney disability was caused or aggravated by his service-connected malaria. See 38 C.F.R. § 3.310. Additionally, although the examiner explained why he could not determine whether the Veteran's renal carcinoma was related to herbicide exposure in service without resort to speculation, this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569. Moreover, the Veteran's Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). An October 2009 VA urology resident note reflects that the Veteran was scheduled for follow up treatment for his kidney disability in 3 months. Also, the January 2011 VA examination report indicates that he continued to be evaluated for his kidney problems every 6 months. The most recent VA treatment records in the claims file that have been obtained by the agency of original jurisdiction (AOJ) are contained in the Pittsburgh and Erie Vista electronic records systems and are dated to October 2009 and November 2009, respectively. There are no additional treatment records included among the Veteran's paperless records in the Virtual VA or VBMS systems. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received post-service treatment for a kidney disability, to include the dates of any such treatment. The Veteran shall also be asked to complete authorizations for VA to obtain all records of his treatment for a kidney disability from any sufficiently identified private treatment provider. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. 2. Obtain and associate with the claims file all records of the Veteran's treatment for a kidney disability contained in the Pittsburgh Vista electronic records system and dated from October 2009 through the present, contained in the Erie Vista electronic records system and dated from November 2009 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination with an examiner who has not yet examined him to determine the etiology of his current kidney disability. All indicated tests and studies shall be conducted. The claims folder, along with any records obtained pursuant to this remand, must be sent to the examiner for review. The examination report should state that the claims folder has been reviewed. Any electronic record should also be reviewed or, if the examiner does not have access to them, provided for review if not already in the claims folder. For each current kidney disability identified (i.e. any kidney disability diagnosed since November 2009, including renal cancer), the examiner shall answer all of the following questions: (a) Is the Veteran's renal cancer a soft tissue sarcoma? (b) Is it at least as likely as not (50 percent probability or more) that the current kidney disability had its onset during service, is related to the Veteran's kidney problems in service, is related to his presumed exposure to herbicides in service, or is otherwise the result of a disease, incident or injury in service? (c) Is it at least as likely as not (50 percent probability or more) that the current kidney disability was caused (in whole or in part) by the Veteran's service-connected malaria and/or right ureterovesical junction calculus? (d) Is it at least as likely as not (50 percent probability or more) that the current kidney disability was aggravated (made chronically worse) by the Veteran's service-connected malaria and/or right ureterovesical junction calculus? If any current kidney disability was aggravated by a service-connected disability, the examiner shall also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In formulating the above opinions, the examiner must acknowledge and comment on any kidney disability diagnosed since November 2009, all instances of treatment for kidney problems in the Veteran's service treatment records (including his November 1969 and April 1970 treatments for renal calculus and a urinary tract infection), his presumed exposure to herbicides in service, and his report of a continuity of symptomatology in the years since service (i.e. kidney stones). The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or a continuity thereof, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. 4. Review the examination report to ensure that it contains the information and opinions requested in this remand and that it is otherwise complete. 5. If the benefit on appeal remains denied, issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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). 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). _________________________________________________ JOHN L. PRICHARD 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).