Citation Nr: 21064761 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-24 990 DATE: October 21, 2021 REMANDED The issue of entitlement to service connection for a kidney disorder, claimed as loss of kidney function, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from Janaury 1965 to Janaury 1968, and from April 1974 to July 1977. In January and August 2021, the Board of Veteran's Appeals (Board) remanded the claims for further development. The Board finds, unfortunately, that another remand is necessary prior to the adjudication of the Veteran's claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). The Veteran seeks service connection for a kidney disability, claimed as loss of kidney function. In the August 2021 Board remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain another opinion to determine whether the Veteran had a kidney disability during the pendency of the appeal period. Specifically, the examiner was directed to address the findings of a private February 2014 CT scan noting "subcentimeter hypoattenuating foci within the bilateral kidneys, [which] likely represented renal cysts." See June 2015 Private Medical Treatment Records; Additionally, the examiner was directed to clarify the April 2021 VA medical opinion, which found that there was no diagnosis of a claimed kidney condition "because the condition [had] resolved." The examiner was asked to identify the condition and to discuss when it resolved and whether it was related to any current diagnosis of a kidney condition. In the August 2021 addendum opinion, the examiner did not address any of the evidence noted above. The examiner opined that the Veteran did not have a current kidney condition and noted that the recent kidney disability benefits questionnaire (DBQ) showed no kidney diagnosis, other than a condition related to his neurogenic bladder. The examiner continued that the kidney function test showed outstanding renal function and no proteinuria. The examiner concluded that, while the Veteran does have urinary tract pathology (neurogenic bladder) related to his service-connected lumbar spine disease and gangliolytic paraganglioma, there is no documented loss of kidney function or current kidney diagnosis. The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal, even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Also, "when the record contains a recent diagnosis of a disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency." Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013). Clearly, this opinion does not help in resolving the issue of whether the Veteran had a kidney condition during the appeal period that may have resolved prior to adjudication. The Board must ensure that that there is substantial compliance with the remand directives, which in this matter, has not happened. See Stegall v. West, 11 Vet. App. 268 (1998). In order to afford the Veteran every possible consideration of his claim, the Board will remand to obtain another medical opinion that adequately addresses the evidence of the record. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with his file. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. He should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's kidney condition, claimed as loss of kidney function. The claims file and a copy of this REMAND should be made available to the examiner for review. After such record review and/or examination, the VA examiner should opine with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) Please provide the diagnosis(es) of a kidney condition found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. In determining whether there is a current kidney condition, the examiner must specifically consider and address the following: i. The findings of the private February 2014 CT scan noting subcentimeter hypoattenuating foci within both kidneys that likely represented renal cysts, and ii. The VA records noting probable cysts in the Veteran's kidneys. See August 2015 VA Medical Treatment Records (CAPRI). iii. The April 2021 VA opinion, which found no diagnosis of a kidney disorder "because the condition [had] resolved." Specifically, the examiner should identify the exact disability and discuss when it resolved and whether or how it relates to any current diagnosis. (b) If a current kidney disorder is found to be present during the pendency of the appeal period, is it at least as likely as not (50 percent or greater probability) that such condition, claimed as loss of kidney function, was incurred in, caused by, or etiologically related to the Veteran's service? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record to ensure that ALL directives above have been completed, conduct any additional development deemed necessary, and readjudicate the claim. If any benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). They should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. He is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, Associate 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.