Citation Nr: 1809983 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 99-22 210A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a kidney disorder, to include as secondary to service-connected hepatic insufficiency. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1976, from November 1976 to May 1979, and from November 1979 to January 1980. This matter is on appeal from August 1998 and January 2002 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This case was previously remanded in January 2005, January 2010, February 2013, and June 2015. In September 2015, the Veteran's attorney submitted correspondence stating that they wished to reopen previously denied claims for service connection and to possibly open new claims. The Veteran and his representative are advised that effective March 24, 2015, VA requires claims to be submitted on a standard application form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2016). This matter is referred to the Agency of Original Jurisdiction (AOJ) as an intent to file a claim. See 38 C.F.R. § 3.155(b). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In June 2015, the issue of entitlement to service connection for a kidney disorder was remanded in order to obtain an addendum medical opinion regarding whether it was at least as likely as not that the Veteran had, at any time during the period on appeal, any kidney disorder that was related to his active duty service, including exposure to chemicals such as trichloroethylene (TCE). A VA medical opinion was obtained from a physician in August 2015. She wrote that there was no medical literature evidence of TCE causing kidney stones and that the Veteran had no evidence of chronic renal disease or renal failure. The only diagnosis the examiner found was a history of kidney stones in 2001 which had resolved. Unfortunately, the Board finds that this medical opinion is inadequate to adjudicate the claim at this time. While the examiner found that the Veteran's kidney stones were not caused by exposure to TCE, she wrote that there was no evidence that the Veteran had any other kidney disorders, which does not appear to be the case. The Veteran's VA treatment records show that in April 2001, he received treatment for kidney stones and renal failure secondary to dehydration. In February 2006, he was referred to as "renal deficient." An August 2012 ultrasound found a small upper pole renal cyst, and in September 2014, an MRI found a lower right renal mass, likely a cyst. An April 2015 renal ultrasound found bilateral renal cysts. In January 2016, the Veteran was informed that his renal cysts were benign. The Veteran therefore has been found to have renal failure/deficiency at some point during the period on appeal, even if it has subsequently resolved. See McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007). The Veteran has additionally been found to have renal cysts. Even if his current treatment providers have indicated that they are likely benign, the Board accepts that such cysts may constitute a disability, and a medical opinion regarding these cysts and their likely etiology must be obtained. Additionally, the examiner is asked to address the letter submitted in September 2015 from neuropsychologist R.S stating that the Veteran had suffered deterioration of the neuropsychological/nervous system function from exposure to TCE in service. The neuropsychologist included a growth on the right kidney in his list of disorders that he believed were related to exposure to neurotoxins in service. Regarding the Veteran's claim for SMC based on housebound status, the Veteran asserts that he is unable to travel and requires assistance with household chores such as cooking. As the Veteran has not been afforded a VA examination which addressed his housebound status or need for aid and attendance since August 2013, which is almost 5 years ago, VA will provide the Veteran with a new VA examination to address whether he is currently housebound or requires aid and attendance. The Board also notes that although the medical evidence of record may not indicate that the Veteran is permanently housebound, SMC under 38 C.F.R. § 3.351(d)(2) (2017) can be assigned if the Veteran has a single disability rated 100 percent disabling and an additional disability or disabilities independently ratable at 60 percent or more. In this case, as was discussed in the Board's prior remand, the Veteran is already service-connected for hepatic insufficiency with a 100 percent disability rating, and it is conceivable that SMC may be for application, depending on whether service connection for his kidney disorder is ultimately granted. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records, including treatment from his private naturopath for renal cysts. 2. Obtain all treatment records from the VA Northern Arizona Health Care System since August 2016, as well as from any other VA facility from which the Veteran has received treatment. 3. Following completion of the above, schedule the Veteran for a VA examination with a qualified physician to evaluate any current kidney disorder. The examiner should review all evidence of record, including the statements made by the Veteran, and perform a full examination of the Veteran, including any necessary tests. The examiner should then address the following: a) What are the Veteran's current diagnoses of the kidneys? What diagnoses has he had since he filed his claim for service connection in April 1999, even if that disorder has subsequently resolved? Please specifically discuss the Veteran's April 2001 treatment for kidney stones and renal failure secondary to dehydration, the February 2006 notation of "renal deficient," and the August 2012, September 2014, and April 2015 imaging which found renal cysts. b) For all disorders found, is it at least as likely as not (a probability of 50 percent or greater) that the disorder is related to his active duty service, and specifically to his TCE exposure, or other chemical exposure in service? Please discuss the September 2015 letter from neuropsychologist R.S stating that the Veteran suffered deterioration of the neuropsychological/nervous system function from exposure to TCE in service, including his subsequent symptom of renal cyst. c) For all disorders found, is it at least as likely as not that the disorder was (i) caused or (ii) aggravated (worsened beyond the natural progression) by his service-connected hepatic insufficiency? If the examiner is unable to provide any opinion without resorting to speculation or for any other reason, an adequate explanation should be provided as to why such an opinion cannot be provided. Such explanations may include, but are not limited to, limited experience in the specific medical field or the need for additional tests. 4. Schedule the Veteran for a VA aid and attendance/housebound examination. If the examiner is unable to provide any needed opinion without resorting to speculation or for any other reason, an adequate explanation should be provided as to why such an opinion cannot be provided. 5. The AOJ must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any aforementioned 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. 6. After the above action is completed the claims should be readjudicated. If the claims are not fully granted, a supplemental statement of the case should be issued. The Veteran and his representative should be afforded the opportunity to respond, and the claims file should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).