Citation Nr: 1604167 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 09-45 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for end-stage renal disease. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney At Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2012, a Board videoconference hearing was held before the undersigned Acting Veterans Law Judge. The transcript of the hearing has been associated with the claims folder. In September 2014, the Board denied the Veteran's claim for service connection for end-stage renal disease. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In August 2015, a Joint Motion for Remand (JMR) was filed with the Court. Later that month, the Court issued an order granting the JMR and vacating the Board's September 2014 decision to the extent that it denied service connection for end-stage renal disease, and remanded the case to the Board for compliance with the JMR and readjudication consistent with its order. This appeal was processed using records which included the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Pursuant to the JMR and the Court's Order, additional evidentiary development is required. As stated above, in August 2015, the Court granted the JMR vacating the Board's previous decision denying the Veteran's claim. According to the JMR, the April 2014 VA examination was inadequate for rating purposes for several reasons. First, it is argued that the Veteran's records from the Social Security Administration and private treatment records, namely records from Dr. Collins, were not considered by the examiner. Moreover, the records of Dr. Collins had not been adequately considered by the Board. In addition, the JMR contends that contrary to the Board's remand instruction in December 2013, the April 2014 VA examination was not conducted by a nephrologist but by a physician's assistant. Given the conflicting etiologic opinions of record, a medical professional with specialized knowledge in renal disease was found to be necessary. Finally, the JMR states that the April 2014 did not reconcile the conflicting medical opinions. Specifically, that "nothing in her opinion otherwise distinguishes the opinions or factual observations contained in either of the prior opinions, so as to enable the Board to make an informed distinction between them." Therefore, given these reasons, and pursuant to the JMR and the Court's Order, the Board finds that it has no alternative but to remand this matter for a new VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a nephrologist to determine the nature and etiology of end-stage renal disease. The examiner must review the all evidence within the claims file and should note that review in the report. The examiner should reconcile the opinion with the February 2008 opinion from the Veteran's VA treating physician and the December 2009 VA medical opinion. a. The examiner should state whether renal disease clearly and unmistakably pre-existed service. The examiner should cite to any evidence of record that demonstrates that the disability clearly and unmistakably existed prior to service. b. If renal disease pre-existed service, the examiner should provide an opinion as to whether renal disease was aggravated by the Veteran's period of active service. Aggravation means a permanent worsening of the underlying condition beyond the natural progress of the disorder. c. The examiner should provide an opinion as to whether there is clear and unmistakable evidence that renal disease was not aggravated beyond the natural progression of the disorder by the Veteran's active service. d. If the examiner determines that the Veteran's renal disease did not clearly and unmistakably pre-exist service and/or was not aggravated thereby, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's end-stage renal disease is related to active service. In providing this opinion, the examiner should consider the Veteran's statements regarding his symptoms of back pain, stomach pain, cramping, and burning on urination, in service and his statements regarding a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Any and all necessary tests should be conducted, and the examiner should review the results of such testing prior to completion of the examination report. All opinions should be supported by a clear rationale, and include a discussion of the facts and medical principles involved. If, for any reason, the examiner is unable to offer an opinion without resorting to speculation, this should be noted and thoroughly explained in the report, along with a complete rationale for such conclusion. 2. Upon completion of the foregoing, review the examiner's report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AOJ should readjudicate the Veteran's claim, considering all applicable laws and regulations. The AOJ should provide the Veteran and his representative with a supplemental statement of the case, allow an appropriate period of time for response, and the claims folder should thereafter be returned to the Board for further appellate review, if otherwise 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 2014). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).