Citation Nr: 1806242 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-14 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a kidney disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from October 1982 to December 1985. This appeal to the Board of Veterans' Appeals (Board) is from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2017, the Board remanded this issue for additional development. Unfortunately, the development was not adequately completed, as discussed below. The Board notes, in a September 2017 statement, the Veteran expressed confusion as to the origination of her kidney disability claim and instead presented argument concerning her low back. To review, the Veteran filed her claim for service connection for a kidney disability in April 2010, which was denied in September 2010. In February 2011, she filed a request for reconsideration, which the Board construes as a Notice of Disagreement (NOD). The statement of the case (SOC) was issued in April 2013, and she filed her formal appeal in May 2013. The issue of whether a back disability should be service-connected was last denied in June 2015, was not appealed, and is not currently before the Board. The Veteran is advised to file a claim should she wish to pursue a claim for service connection for her back. This appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The VA medical opinions of record are inadequate on their own to adjudicate the Veteran's claim. Primarily, the July 2017 VA examiner did not follow the Board's remand instructions, to consider and address the Veteran's statements regarding continuous back pain from service up till the surgery to repair her right kidney. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has argued that the back pain was a manifestation of her kidney disability, and that she has had persistent back pain since service. Her medical records show complaints of back pain in November 1986 and November 1995, and the examiner was asked to opine on whether those records, along with the Veteran's complaints, showed early symptoms of her current diagnoses. The examiner diagnosed her with normal kidneys and did not comment on the fact that she had objective diagnoses during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). The June 2016 VA examiner opined that her kidney diagnoses, hydronephrosis and hydroureter, were caused from an obstruction caused by crossed vessels, which was further not likely to have been caused by a fall. In April 2011, VA treatment providers noted that the crossed vessels were a congenital obstruction. Accordingly, a more detailed opinion on whether the kidney diagnoses resulted from a congenital condition must also be obtained. The Board notes that diseases (but not defects) of congenital, development or familial origin may be recognized as service-connected if the evidence as a whole establishes that the familial conditions in question were incurred in or aggravated during service within the meaning of VA regulations. VAOPGCPREC 82-90. Conversely, defects of congenital, development or familial (hereditary in) origin may not be service-connected, because they are not diseases or injuries under the law. 38 C.F.R. § 3.303(c). However, many such defects can be subject to superimposed disease or injury. If, during service, superimposed disease or injury does occur, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Accordingly, an opinion must be obtained addressing the etiology of her diagnoses and their relationship to the asserted injury in service and her symptoms thereafter up to the present. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran for authorization to obtain records of treatment from her non-VA urologist. 2. After receipt of records, schedule an appropriate examination regarding the etiology of kidney disability. The examiner is asked to review the file prior to opining. The Veteran asserts falling on her back onto a log during basic training and that she has had persistent symptoms of back pain since that time. Her STRs do not document such an injury, but that alone is not dispositive of the issue. The examiner is asked to elicit details of the injury and symptoms thereafter. The record does show treatment in April 1985, and her separation examination in November 1985 notes back pain and treatment. In March 2010, she had pyeloplasty on her right kidney, which she reported alleviated her back pain for some time. In April 2011, it was noted the need for the pyeloplasty was a congenital UPJ obstruction, identified as crossing vessels. In June 2016, she complained of flank pain, and a CT scan showed an essentially normal kidney except for tiny hypodense lesions that likely represent cysts. The examiner is asked to provide opinion on the following: a. Was the cause of the obstruction that lead to hydronephrosis, hydroureter, and any other kidney diagnosis congenital in origin [this includes prior kidney diagnoses which have since resolved]? b. If yes, is the cause of the obstruction considered a "disease process" or is it a "defect or abnormality"? (A "disease" may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs, and whose etiology, pathology, and prognosis may be known or unknown, which is capable of improving or deteriorating. In turn, a "defect" is defined as a structural or inherent abnormality or condition, which is more or less stationary in nature, and not considered capable of improving or deteriorating.) c. If the proper classification of the cause of the obstruction is a congenital "defect or abnormality," the examiner should opine whether is it is at least as likely as not (at least 50 percent probability) that the congenital defect incurred a superimposed disease or injury that: (1) began during active service; or (2) is related to any in-service event or injury. As mentioned, the Veteran asserts having fallen on a log on her back during service. Her STRs also show pain after moving furniture. She expressed that her pain was relieved after her first surgery, but has returned in more recent years. The examiner is asked to address both in-service injuries. d. If the proper classification of the cause of the Veteran's obstruction is a congenital "disease process", the examiner should provide an opinion as to whether the disease process clearly and unmistakably existed prior to service. i. If yes, it clearly and unmistakably existed prior to service, the examiner is asked whether it is clear and unmistakable that it was NOT aggravated (permanently worsened) by the injuries in service? ii. If no, it did not clearly and unmistakably exist prior to service, the examiner is asked whether it is as likely as not (at least 50 percent probability) that the disease process that lead to the obstruction either began in service or is related to an incident of service. As mentioned, the Veteran asserts it is related to an injury in service, and that she has had persistent symptoms since then. The examiner is asked to review the relevant literature prior to opining and to provide an explanation for all rendered opinions. 3. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and her representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2014). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).