Citation Nr: 21061469 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-25 612 DATE: October 4, 2021 REMANDED Entitlement to service connection for a kidney disability, to include acute kidney stones, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1983 to June 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. The issue on appeal was previously before the Board in December 2018 and April 2020. In December 2018, the Board remanded the issue to the agency of original jurisdiction for additional development. Thereafter, in April 2020, the Board issued a decision that denied service connection for acute kidney stones. The Veteran appealed the Board's April 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. Entitlement to service connection for a kidney disability, to include acute kidney stones, is remanded. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under the law, every veteran is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111. History provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition for conditions not noted at entry, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). In the present case, no kidney disability was noted at the time of the Veteran's April 1983 enlistment examination. However, on a concurrent Report of Medical History, she reported a history of kidney stone in 1982. In the April 2020 decision, the Board found that there was clear and unmistakable evidence that the Veteran's kidney stone disability pre-existed her entrance to active duty and did not permanently increase in severity beyond the natural progression during active duty. Among other things, the Board referenced a December 2019 VA examiner's opinion in support of that decision. In the JMR filed with the Court, the parties to the JMR agreed that the Board's discussion of the December 2019 medical opinion was inadequate for two reasons. First, it was noted that while the examiner checked a box indicating that the claimed condition "was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or disease," the examiner also stated that the "claimed acute kidney stones . . . were less likely than not aggravated beyond [] natural progress by the claimed 1987 kidney stone diagnosis during service." Thus, while the examiner checked a box applying the correct legal standard, the rationale applied a different legal standard. The parties agreed that the Board failed to address this issue when analyzing the opinion, to include whether clarification was necessary to an appellate decision. Second, the parties to the JMR agreed that the Board provided inadequate reasons and bases for finding that the examiner "reviewed [Appellant's] contentions in light of the entire evidentiary record, including the service treatment records." The parties noted that the examiner had been requested to provide clarification of a prior examination report in light of the report of an in-service medical examination dated October 16, 1989, and while the examiner discussed a record dated October 26, 1989, he did not reference the October 16, 1989 report. The parties further noted that the Veteran's service treatment records also included a June 29, 1987 progress note that the examiner failed to mention. The parties agreed that the examiner's report cast doubt on whether he reviewed the entire evidentiary record, which rendered the Board's reasons and bases inadequate. Following review of the record, and in view of the terms of the JMR, the Board finds that a new medical examination and opinion are warranted to adequately address the etiology of the Veteran's current kidney disability under the correct legal standard, based on review of the entire evidentiary record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any non-VA care providers who may possess new or additional evidence pertinent to the issue on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination by an appropriately qualified clinician for purposes of addressing the etiology of her current kidney disability. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should prepare a report addressing each of the following questions: a. Is it clear and unmistakable (i.e., manifest, obvious, or undebatable) that a kidney disability, including kidney stones, existed prior to the Veteran's entry into service? If so, please identify the disability that existed prior to service. In so doing, please comment on the medical significance, if any, of the Veteran's account of having kidney stones prior to service on her April 1983 Report of Medical History. b. If it is clear and unmistakable that a kidney disability existed prior to service, is it also clear and unmistakable that any such disorder(s) did NOT increase in severity during service beyond the natural progress of the condition? Please comment on the medical significance, if any, of an in-service progress note dated June 29, 1987 reflecting that the Veteran sought medical treatment because she "may be trying to pass a stone"; a report of medical examination dated October 16, 1989 which indicates that the Veteran had a kidney stone attack in 1987, and "still has stone"; and an October 26, 1989 treatment record which noted a complaint of right flank pain and history of renal stone. c. If it is not clear and unmistakable that a kidney disability existed prior to service, is it at least as likely as not (i.e., is it 50 percent or more probable) that a current kidney disability was incurred in or is otherwise the result of active service? A complete rationale for all opinions expressed must be provided 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.