Citation Nr: 1646039 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 14-06 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a kidney condition with renal failure and fatty tissue. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to September 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a Central Office Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary prior to appellate review. The Veteran has asserted that his kidney condition is related to exposures from contaminated water while serving at Camp Lejeune. Service treatment records support that the Veteran was stationed at Camp Lejeune from 1974 to 1977. The record also includes evidence of ongoing treatment and various surgeries for chronic kidney problems, including hydronephrosis and ureteropelvic junction obstruction. Additionally, a VA physician noted in August 2013 that contaminated water at Camp Lejeune has been linked to various conditions, including to "bladder, kidney myeloma, MDS scleroderma along with many other issues." The physician noted that there is "a high level of suspicion in this vet with many of the [a]bove symptoms," presumably suspicion that the Veteran's problems are related to contaminated water at Camp Lejeune. Given the foregoing, the Board finds that the low threshold of the McLendon standard has been met in this instance, and that the Veteran should be afforded a VA examination and opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). There also appear to be a number of outstanding treatment records, as well as some confusion as to whether certain records pertain to the Veteran. Initially, an April 2010 statement of the case references review of VA treatment notes dating from February 2005, and an unrelated March 2015 VA opinion references VA treatment records dating from as early as October 1977. However, those VA treatment notes are not of record and should be obtained on remand. Additionally, the Board observes that, although they contain references to his name and Social Security number, the Veteran disputes that certain VA treatment records dated in 1996 (which discuss a history of drug use) refer to him. He states that there are references in those records to gunshot wounds and tattoos that he does not have, and he has submitted an August 2009 VA treatment note suggesting that there is "clearly a case of mistaken identity." As the Veteran alleges that this mistake is interfering with his claims, the Board finds that efforts should be made to determine whether incorrect records have been associated with the Veteran's treatment records. The Board also observes that it does not appear that the Veteran's complete service personnel records and treatment records have been obtained, and they should be requested on remand. Finally, the Veteran testified in July 2016 that he has been unable to work because of his pain and surgeries for his kidney condition and has been receiving Social Security disability benefits as a result. As those records are relevant to the claimed disability on appeal, they should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Request through official sources the Veteran's complete service personnel and treatment records. All records and/or responses received should be associated with the claims file. The Veteran and his representative should be notified of unsuccessful efforts in this regard to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Obtain and associate with the claims file VA treatment records dating since October 1977. If the records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. Additionally, to the extent possible, determine whether any treatment records currently associated with the Veteran's treatment records actually pertain to another veteran, to specifically include records relating to treatment for an IV drug-related abscess dated in July 1996. Please reconcile the determination in this regard with the August 2009 treatment record suggesting that there is "clearly a case of mistaken identity." 3. Request from the SSA copies of the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 4. Then, schedule the Veteran for a VA renal examination. The claims file should be reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be accomplished and the results reported. The examiner should clearly list all current kidney disabilities diagnosed on examination. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any kidney disability diagnosed during examination or during the course of the claim arose during the Veteran's period of active duty service from January 1974 to September 1977, or is otherwise related to service, to include exposure to contaminated water while stationed at Camp Lejeune. The examiner should explain the medical basis for any conclusion reached. 5. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and 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 2014). _________________________________________________ S. C. KREMBS 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).