Citation Nr: A21020574 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 210107-128501 DATE: December 28, 2021 REMANDED Entitlement to service connection for a kidney disability is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from February 1981 to April 1985. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal) and requested direct review by the Board. In the October 2020 rating decision on appeal, the RO determined that new and relevant evidence had been received to readjudicate the Veteran's claim for service connection for a kidney disability, and that the Veteran has current diagnoses of nephrolithiasis, stage 2 chronic kidney disease, and hydronephrosis. The Board is bound by these favorable findings, as no clear and convincing evidence is shown to the contrary. 38 U.S.C. § 5104A. The Board observes that the Veteran submitted lay and medical evidence during a period of time when new evidence was not allowed, since the Veteran elected direct review. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) and 38 U.S.C. § 7107(b). Entitlement to service connection for a kidney disability is remanded. The Veteran asserts he is entitled to service connection for a kidney disability, to include as due to claimed exposure to burn pits during his service in the Sinai Peninsula of Egypt. The Board finds that remand is necessary to cure an error by the Agency of Original Jurisdiction (AOJ) in satisfying a regulatory duty under 38 C.F.R. § 3.156(c), and to cure pre-decisional duty to assist errors. As an initial matter, the Board notes that additional service treatment records (STRs) were added to the Veteran's claims file in January 2021. If at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim, notwithstanding the regulations concerning reopening claims under 38 C.F.R. § 3.156(a). The AMA system and relevant regulations have changed the standard for determining whether sufficient evidence has been received to warrant readjudication of a previously decided claim. Nonetheless, the new AMA standards concerning new and relevant evidence do not affect the application and operation of 38 C.F.R. § 3.156(c). Here, the Board finds that the STRs received in January 2021 are relevant and were not associated with the claims file when VA decided the claim in the October 2020 rating decision on appeal. Among these STRs is a December 1980 Report of Medical History in which the Veteran reported he received treatment for trouble urinating when he was 11. This is potentially relevant to his claimed kidney disability, as it raises the question of whether the disability preexisted his active service. As such, VA must reconsider the Veteran's claim pursuant to 38 C.F.R. § 3.156(c). Additionally, the Board finds that the RO erred in not obtaining a competent medical examination and opinion addressing this claim. While the RO initially requested a VA examination and medical opinion in August 2020, the examination request was cancelled by the examination site or VA in September 2020. See August 2020 "Exam Request"; September 2020 "Exam Request Modification." Given the Veteran's current diagnoses of nephrolithiasis, stage 2 chronic kidney disease, and hydronephrosis; his competent reports of exposure to burn pits during his service in the Sinai Peninsula of Egypt; and the June 2020 statement of his private treatment provider that "he had exposures to human wastes and diesel fuels and so it is more likely than not that this could have contributed to his CKD (chronic kidney disease)"; a VA examination should be afforded to him. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Board observes that the RO has not undertaken any development to verify the Veteran's claimed exposure to burn pits during his service in the Sinai Peninsula of Egypt from February 1982 to August 1982, to include making a formal finding on a lack of evidence sufficient to verify his exposure. Thus, on remand, the RO should undertake any appropriate development to verify the Veteran's claimed in-service exposures. This should be accomplished prior to affording the Veteran a VA examination for his kidney disability. Accordingly, the matter is REMANDED for the following actions: 1. Undertake all appropriate development to verify the Veteran's claimed in-service exposure to burn pits during his service in the Sinai Peninsula of Egypt from February 1982 to August 1982. Then, make a formal finding as to whether the Veteran's claimed exposure to burn pits is confirmed and the reasons therefore, associate all such findings with the claims file, and notify the Veteran and his representative of such findings. 2. Then, provide the Veteran a VA examination, if possible, to determine the nature and likely etiology of his claimed kidney disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his kidney symptoms before, during, and since service. (b) Identify all currently diagnosed kidney disabilities. (c) For each currently diagnosed kidney disability, provide an opinion as to the following: i. Did the kidney disability clearly and unmistakably exist prior to his entrance to service? * Specifically, consider the Veteran's statement in a December 1980 Report of Medical History that he received treatment for trouble urinating when he was 11. ii. If the Veteran's kidney disability clearly and unmistakably existed prior to his service, opine whether such disability was clearly and unmistakably NOT AGGRAVATED beyond its natural progression by the Veteran's service. iii. If the Veteran's kidney disability did not clearly and unmistakably exist prior to service, opine whether it at least as likely as not (50 percent probability or greater) had its onset during his active service or is otherwise related to it, to include as due to claimed exposure to burn pits during service in the Sinai Peninsula of Egypt. * Specifically, address the private provider's statement in a June 2020 private treatment record that during the Veteran's service, "he had exposures to human wastes and diesel fuels and so it is more likely than not that this could have contributed to his CKD." A complete rationale must be provided for all opinions rendered. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.