Citation Nr: 1806291 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 03-03 102A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for polycystic kidney disease, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Dax. J. Lonetto, Sr., Attorney at Law ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from March 1983 to January 1987. This matter is before the Board of Veteran's Appeals (Board) on appeal from a February 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Previously, the case was before the Board in August 2015 and August 2014. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends he is entitled to service connection for polycystic kidney disease, to include as secondary to his service-connected hypertension. This case was previously before the Board in August 2015. Regrettably, another remand is warranted to comply with the August 2015 remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. First, VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159 (2017). "Relevant records" to be considered to determine a Veteran's eligibility for compensation benefits are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In a January 2016 VA examination, the Veteran reported receiving Social Security Administration (SSA) disability benefits since 2012. See January 26, 2016 VA examination. As these identified SSA records may be relevant to the claim on appeal, the case must be remanded so appropriate attempts can be made to obtain these outstanding records. In addition, there is an indication that the Veteran underwent private treatment from various physicians during the period on appeal for his polycystic kidney disease. As a result of the August 2015 remand, in October 2015 correspondence the Veteran submitted a completed and signed Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), VA form 21-4142, identifying outstanding private records from six private treatment providers, Dr. J.L., Dr. M.D., Dr. J.K., Dr. C.K., Dr. T.A., and Dr. D.C.. Recently the Veteran's representative submitted private treatment records from Dr. C.K. and Dr. J. L. However, treatment records from the remaining identified private treatment providers have not been associated with the claims file. On remand appropriate attempts should be made to locate and obtain these outstanding private treatment records. Further, there is a pending request by the Veteran's representative dated in December 2017 for unspecified records that was acknowledged by the VA Records Management Center later the same month and has not been completed. Lastly, if additional relevant treatment records related to the Veteran's polycystic kidney disease are associated with the claims file the case should be referred to the September 2017 VA examiner for a supplemental opinion. Accordingly, the case is REMANDED for the following action: 1. Appropriate attempts should be made to obtain and associate with the claims file the Veteran's Social Security Administration (SSA) records. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. Appropriate efforts should be made to obtain and associate with the electronic case file the identified outstanding private medical records identified and authorized for release by the Veteran, associated with his polycystic kidney disease. Specifically, six private treatment providers were identified in December 2015. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 3. After completing the development above to the extent possible in directives number 1 and number 2, and then only if warranted based on additional treatment records being associated with the claims file, refer the case to the September 2017 VA examiner for a supplemental opinion. If the same examiner is not available, the claims folder should be forwarded to another clinician. If examination of the Veteran is deemed necessary, appropriate arrangements should be made to evaluate the Veteran. The examiner shall review the Veteran's claims file, and review any additional treatment records and private opinions associated with the claims file since the last examination and revisit all prior opinions provided. After reviewing the claims file and examining the Veteran, if warranted, the examiner should answer the following questions: a. Did the Veteran's polycystic kidney disease preexist his active service? b. Is the Veteran's polycystic kidney disease considered to be a "defect" or "disease" for VA purposes? In this regard, the examiner should note that a congenital defect is defined as a condition that is more or less stationary in nature and a congenital disease is defined as a condition capable of improving or deteriorating. c. If the polycystic kidney disease is a congenital or developmental defect, is it at least as likely as not (a fifty percent probability or greater) that there was a superimposed disease or injury in-service that resulted in an additional disability of the kidney? d. If the polycystic kidney disease, is a congenital disease, is it at least as likely as not (a fifty percent probability or greater) not aggravated (i.e., permanently worsened beyond its natural progression) during active service? e. If so, was the increase in disability clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progression of the disease? f. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's polycystic kidney disease was caused by his service-connected hypertension? g. Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's polycystic kidney disease was aggravated (permanently worsened beyond its natural progression) by his hypertension? Review of the entire claims file is required. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of his polycystic kidney disease by the service-connected hypertension. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative, if any, should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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 2012). _________________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).