Citation Nr: 1753749	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO. 14-08 437	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1. Entitlement to an evaluation in excess of 60 percent for status post renal cancer and right nephrectomy associated with asbestos exposure.

2. Entitlement to an evaluation in excess of 10 percent for tinnitus.

3. Entitlement to a compensable evaluation for service-connected bilateral hearing loss.

4. Entitlement to a compensable evaluation for a scar, status post right nephrectomy.

ATTORNEY FOR THE BOARD

G.C., Associate Counsel





INTRODUCTION

The Veteran served on active duty from June 1964 to June 1967. 

This matter is on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the pendency of the appeal, the Veteran relocated to Scottsdale, Arizona. Jurisdiction now lies with the Phoenix, Arizona RO.

The Board notes that the Veteran does not have representation. While there is a power of attorney of record appointing the New Jersey Division of Veteran's Services as his representative in July 1967, said representation was limited to the Veteran's July 1967 educational benefits claim.

The issue of entitlement to an evaluation in excess of 60 percent for status post renal cancer and right nephrectomy associated with asbestos exposure is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260; separate ratings for each ear are not authorized.

2. The Veteran's bilateral hearing loss has been manifested by hearing impairment corresponding to auditory acuity no worse than Level II in the right ear and Level I in the left ear.

3. During the entire appeal, the Veteran's trunk scar was not painful or unstable. The scar, at its longest recorded measurement, measured no more than 0.75 centimeters in width and 23 centimeters in length. The scar was superficial and there was no skin breakdown, inflammation, edema, or keloid formation. The scar did not limit motion and there was no limitation of function due to the scar.


CONCLUSIONS OF LAW

1. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; (2012); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2017); Smith v. Nicholson, 19 Vet. App. 63 (2005) rev'd, 451 F.3d 1344 (Fed. Cir. 2006).

2. The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017).

3. The criteria for an initial compensable evaluation for a scar have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.114, 4.118, Diagnostic Code 7805 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1).

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Board notes nonetheless that VA has satisfied its duty to assist the Veteran in the development of the claim by fulfilling its duty to seek and assist in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file includes all available military personnel records, service treatment records, post-service private and VA treatment records, and the Veteran's lay statements. Furthermore, VA medical examinations and opinions have been obtained.

The Board notes that this matter is being remanded in part for further development, to assess the current nature of the Veteran's service-connected status post renal cancer and right nephrectomy associated with asbestos exposure.

II. Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2002); 38 C.F.R. § 4.1 (2016). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). 

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2016). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2016). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of pain, inability to hear or other readily observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been in large part consistent with the medical evidence of record, and are probative for resolving the matters on appeal.

A. Tinnitus

The Veteran's tinnitus was assigned a 10 percent rating, effective February 25, 2010. He seeks a higher rating under Diagnostic Code 6260.

Effective on June 13, 2003, Diagnostic Code 6260 for tinnitus was revised to clarify existing VA practice that only a single 10 percent evaluation is assigned for "recurrent" tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Note (2) (2017); 68 Fed. Reg. 25822 (June 2003). See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). This, however, does not amount to a liberalizing change, but rather a clarification of existing law. 

In the case currently on appeal, the RO assigned the Veteran a 10 percent rating for his service-connected tinnitus. The effective date of the award of 10 percent for tinnitus is after the date of the June 13, 2003, amendment to the rating code. Thus, a 10 percent rating is clearly the maximum rating assignable for the Veteran's bilateral tinnitus. An increased schedular rating or assignment of a compensable evaluation for each ear is not available. 

Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

B. Bilateral Hearing Loss

In February 2010, the Veteran submitted a claim for entitlement to service connection for bilateral hearing loss, and in a December 2010 rating decision, service connection was granted with a noncompensable evaluation. The Veteran timely appealed the December 2010 rating decision. In his March 2011 Notice of Disagreement (NOD), the Veteran stated he had a hard time hearing his family and friends. He also states his latest hearing examination at the time of his NOD showed hearing deterioration since his separation from service in 1967, and that he should be receiving a 70 percent disability rating for his bilateral hearing loss. 

The Veteran's bilateral hearing loss has been evaluated under Diagnostic Code 6100 for hearing loss. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. 

Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). The provisions of 38 C.F.R. § 4.86 (b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral.

Relevant evidence of record consists of two VA examinations provided to the Veteran in September 2010 and January 2014. The Veteran has also submitted written argument in support of his claim. 

Results from the September 2010 VA audiogram reflect that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
35
40
LEFT
20
20
25
30
40

Puretone averages were 27.5 decibels for the right ear and 28.8 decibels for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 96 percent in the left ear, using Maryland CNC tests. The Veteran indicated at this examination that his hearing loss began in 1970, and that he has not been receiving any treatment. Further, his complaints consisted of difficulty hearing and understanding. Based on the examination results with the utilization of Table VI, the Veteran has Level II hearing impairment in the right ear and Level I hearing impairment in the left ear. Applying the results to Table VII, a noncompensable disability rating is warranted for hearing loss based on the September 2010 VA examination. See 38 C.F.R. § 4.85 (Diagnostic Code 6100).

The Veteran was also afforded a VA examination in January 2014 for an assessment of his bilateral hearing loss. Results from the January 2014 VA examination reflect that puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
35
40
45
LEFT
30
25
35
40
45

The Veteran reported difficulty hearing his family, his wife, and when doing volunteering activities. The examiner confirmed the Veteran's diagnosis of bilateral sensorineural hearing loss. Puretone averages were 38 decibels for the right ear and 36 decibels for the left ear. Speech audiometry, using Maryland CNC tests, revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. Based on those results with the utilization of Table VI, the Veteran has Level I hearing impairment in the right ear and Level I hearing impairment in the left ear. Applying the results to Table VII, a noncompensable disability rating is warranted for hearing loss based on the January 2014 VA examination. 

Furthermore, the Veteran reported in a February 2014 letter that his hearing was getting worse. Specifically, the Veteran states he has a hard time hearing people and understanding what is being said on TV. However, there are no statements of record since then from the Veteran regarding his hearing loss. 

The Board has reviewed the Veteran's entire claims file, including VA and private treatment records, and notes that there is no other pertinent audiological testing of record. Indeed, the Veteran has conceded not having received treatment for his hearing loss. See September 2010 VA examination.

Applying the results of the Veteran's September 2010 VA audiogram reveals no worse than Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. Similarly, applying the results of the Veteran's January 2014 VA audiogram reveals no worse than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. Application of the above-noted findings to Table VII results in a noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Thus, the examination reports of record do not support the assignment of a disability rating in excess of what the RO initially awarded-a noncompensable rating-for the entirety of the appeal period.

The above determinations are based on consideration of the applicable provisions of VA's rating schedule. In particular, the Board notes that the September 2010 VA audiological examination report, as well as the January 2014 VA audiogram, described the effects of the Veteran's hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In particular, the Board notes that upon being asked, the Veteran described difficulty hearing speech. Diminished acuity such as this is what the rating criteria are designed to compensate. 

The Board acknowledges that the Veteran is competent to report symptoms such as decreased hearing, but that he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical severity. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The lay evidence does not constitute competent medical evidence and lacks probative value. 

For all the foregoing reasons, the Board finds that the claim for an initial compensable rating for bilateral hearing loss must be denied. This is so for the entirety of the claim period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for increase, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

C. Scar, Status Post Right Nephrectomy

The Veteran submitted a claim for service connection for a scar, status post right nephrectomy in February 2010, and a December 2010 rating decision granted service connection with a noncompensable evaluation. The Veteran appealed the December 2010 rating decision, and in a March 2011 notice of disagreement (NOD), the Veteran stated he should have received some compensation for the "large scar" he received when they removed his right kidney. The Veteran further stated that his scar is evident whenever he is in a bathing suit or shorts. See March 2011 NOD.

In this case, the Veteran is currently assigned a noncompensable evaluation for his scar, status post nephrectomy, which is located on the trunk and wraps from the anterior to posterior trunk pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805.

Under Diagnostic Code 7805, other scars, a separate rating can also be warranted for any disabling effects not considered under Diagnostic Codes 7800-7804. See 38 C.F.R. § 4.118 (2017).

Diagnostic Code 7800is applicable to burn scars, scars due to other causes, or disfigurement of the head, face, or neck. This Diagnostic Code is not applicable in this case, as the scar is located on the Veteran's trunk.

Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm, with higher ratings assigned for increases in area of the scar. 

Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater.

Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful.

The Veteran was afforded a VA examination in October 2010 to evaluate his status post renal cancer with loss of kidney, which included an evaluation of the Veteran's scar. The examiner performed a physical skin examination, and noted that the Veteran had a scar on the trunk that wraps from the anterior to the posterior precisely located right flank, status post nephrectomy. The anterior portion of the scar was noted to measure 16 cm by .75 cm and the posterior portion of the scar was noted to measure 6 cm by .75 cm. The examiner stated the scar was linear. It was not painful on examination. No skin breakdown or inflammation was noted. The scar was assessed as superficial, with no underlying tissue damage. No edema or keloid formation were noted. The examiner further stated that the scar was not disfiguring, does not limit the Veteran's motion, and does not limit his function. 

After the Veteran's March 2011 notice of disagreement was received, he was afforded another VA examination in January 2014 to assess the nature of his service-connected scar. The Veteran reported his scar from his right kidney removal in 1996 to be well healed. The examiner indicated he reviewed the Veteran's entire claims file, and confirmed the diagnosis of a scar on the posterior trunk, and specifically, the right lateral back to hip area. The scar was noted to be linear, superficial, and measured 22 cm. The scar was assessed as neither painful, nor unstable. The scar was noted as not due to burn injuries, and pertinently, that it did not have any effects beyond those noted, including any further physical complications, conditions, signs or symptoms. 

A subsequent nephrology VA examination in November 2015 contained an evaluation of the Veteran's scar. Indeed, the examiner confirmed a diagnosis of a scar to the right flank, lateral side of abdomen, healed without residuals, status post right nephrectomy. The examiner indicated that the Veteran's entire claims file was reviewed, including all records pertaining to the scar. He noted that it was neither painful nor unstable, and that the total area affected does not exceed 39 square centimeters. The Veteran's scar was described as a healed curvilinear scar traversing over the right lateral side, anteriorly-posteriorly, measuring 23 cm in length by 0.5 cm in width. No palpable scar tenderness, soft tissue tenderness or masses were noted. A slight gross asymmetry of the abdomen with some tissue herniation of the right flank surgical site as compared to the left flank side was noted. 

The only other medical evidence of record regarding any dermatological complaints or treatment relate to treatment of a skin condition on his elbows. In an April 2017 dermatology follow up for lesions to his elbow, the Veteran was diagnosed with left elbow dermatitis. In fact, when asked whether the Veteran had any prior skin disorders, the Veteran responded that he had not. See April 2017 VA medical records.

The Board acknowledges that the Veteran is competent to report symptoms such as pain, but that he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical severity. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). The lay evidence does not constitute competent medical evidence and lacks probative value. 

The evidence of record demonstrates that at no point in time was the Veteran's scar assessed to be longer than 23 centimeters in length or wider than 0.75 centimeters. This covers an area of 17.25 square centimeters, or otherwise stated, approximately 2.7 square inches. Furthermore, no evidence of pain or instability is reflected, and the scar has consistently been evaluated as superficial. In the November 2015 VA nephrology examination, the examiner described the Veteran's scar as curvilinear, suggesting it was not entirely linear, as the previous examinations have indicated. While the Veteran has complained of the visibility of his scar, no complaints of pain, instability or restricted function are of record. 

Applying the evidence of record to the rating criteria, the Board finds that even conceding that the Veteran's scar is nonlinear, he is not entitled to a compensable evaluation. The Veteran's scar covers an area well under 144 square inches, the minimum required for a 10 percent evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7802. Furthermore, the Veteran's scar also covers an area well under the 6 square inches required for a 10 percent evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7801, and in addition, does not qualify for an evaluation under said diagnostic code as all the evidence of record shows his scar to be superficial, not deep. No underlying tissue damage has been noted. See October 2010 VA examination; see also 38 C.F.R. § 4.118, Diagnostic Code 7805, Note (1). Finally, the Veteran does not qualify for a rating under 38 C.F.R. § 4.118, Diagnostic Code 7804, as this diagnostic code applies only to scars which are painful or unstable. Indeed, there are no complaints of instability or pain of record, and all medical evaluations have assessed that the Veteran's scar is neither painful nor unstable. 

The Board has applied the benefit-of-the-doubt rule; however, the evidence preponderates against a finding that a higher rating is warranted for the Veteran's trunk scar and, to that extent, the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. 

Entitlement to a compensable evaluation for bilateral hearing loss is denied.

Entitlement to a compensable evaluation for scar, status post right nephrectomy, is denied.



REMAND

The Veteran was granted service connection for status post renal cancer and right nephrectomy associated with asbestos exposure in a December 2010 rating decision, with an evaluation of 60 percent effective February 2010. This disability rating was assigned based on constant albuminuria with some edema and definite decrease in kidney function. 

The Veteran was last afforded a VA examination in November 2015, over two years prior to the date of this decision. Furthermore, records received in February 2017 from Dr. B.S., the Veteran's primary care provider, show that from November 2015 to August 2016, the Veteran went from weighing 163 pounds to 149 pounds, a significant 14 pound weight loss representing nearly 10 percent of the Veteran's weight. Furthermore, in a March 2015 treatment note, the Veteran was instructed to limit his walking activity due to pain and inflammation. These symptoms suggest a potential worsening of the Veteran's condition.

The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, as the record indicates a potential worsening of the Veteran's condition since the last examination, a new VA examination should be obtained on remand.

Since the claims file is being returned, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 

2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the electronic file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond.

3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the severity and manifestation of his status post renal cancer and right nephrectomy associated with asbestos exposure. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. 

The examiner must provide accurate and fully descriptive assessments of all kidney/nephrectomy symptoms, to include albuminuria, edema, definite decrease in kidney function or other organ systems, hypertension, BUN levels, creatinine levels, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, and/or the requirement of dialysis. The appropriate Disability Benefits Questionnaire must be utilized. 

The examiner is asked to also specifically address Dr. B.S.'s findings of weight loss from November 2015 to August 2016, and limitation of activities. 

4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response.

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. §§ 5109B, 7112 (West 2014).



______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs