Citation Nr: 21010755 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-13 010 DATE: February 25, 2021 REMANDED Entitlement to service connection for residuals of a contusion of the left kidney is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1966 to August 1967. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A written transcript could not be produced due to an audio malfunction by the Digital Audio Recording System. In a February 2020 letter, the Veteran was informed of this malfunction and offered the opportunity to testify at another Board hearing. In April 2020, he responded telephonically and stated that he did not wish to appear at another hearing. This matter was previously before the Board in November 2020, at which time it was remanded for further development. Service connection for residuals of a contusion of the left kidney In November 2020, the Board remanded this issue to obtain updated VA treatment records and to accord the Veteran an examination related to his claimed kidney condition. The Board noted that the most recent VA treatment records in the file were from January 2017 and that outstanding records may be relevant to the Veteran’s claim. The Board also found that a VA examination was needed to clarify whether the Veteran had a current kidney disorder related to, or constituted a residual of, his in-service left kidney contusion. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. While VA records were added to the file in November 2020, these records only go up to August 2017 and are duplicative of records previously included in the claims file. It is unclear whether the search for updated VA treatment records did not result in finding more recent records, but it is possible that outstanding VA records still exist as no finding to the contrary has been included in the record. As additional updated VA treatment records may remain outstanding, the Board finds that there has not been substantial compliance with the November 2020 remand directives. See Stegall, 11 Vet. App. at 271. On remand, another search for outstanding VA records should be conducted, to include a formal finding that no records remain outstanding if such is the case. In addition, the Veteran was accorded a VA examination in December 2020 at which time the examiner diagnosed chronic kidney disease and acknowledged the Veteran’s reports of an in-service fall resulting in an injury to his left kidney and of problems since then. The examiner opined, however, that it was less likely than not that the Veteran’s chronic kidney disease was related to his in-service injury. The examiner noted that the Veteran’s left kidney contusion was acute and resolved during service and that his chronic kidney disease was diagnosed more than fifty years after the in-service injury. The examiner also noted that there was no evidence of any residuals or a contusion to the left kidney in the Veteran’s service treatment records and that his chronic kidney disease was not related to his in service injury. As such, the examiner concluded that a nexus had not been established. In offering this opinion, the examiner did not fully address or opine as to whether the Veteran’s chronic kidney disease was related to his in-service injury. The examiner summarily stated that the condition was not related to the in-service injury without offering any rationale or explanation for such finding. The examiner instead relied on the time between his service and the diagnosed disability and generally stated that a nexus had not been established. The examiner did not address or consider the Veteran’s reports of continuing problems since service. The Board, thus, finds that the December 2020 VA examination opinion does not substantially comply with the Board’s November 2020 remand directives and that a remand is necessary for corrective action. See Stegall, 11 Vet. App. at 271. On remand, an opinion should be obtained that adequately addresses the nature and etiology of the Veteran’s kidney disability and that includes a complete rationale for the provided opinion. This matter is REMANDED for the following action: 1. Identify and obtain outstanding VA treatment records—including records from August 2017 to the present—and associate them with the claims file. All requests and responses for these records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain these records, and allow him an opportunity to provide any missing records. If the search for updated VA treatment records indicates that no updated treatment records exist, such should be noted in the claims file. 2. Then, obtain a VA addendum opinion from an appropriate examiner to determine the current nature and etiology of the Veteran’s kidney disability, to include the diagnosed chronic kidney disease. A new VA examination may be conducted if deemed necessary. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should opine whether it is at least as likely as not (i.e., at least a 50 percent probability or greater) that the Veteran’s diagnosed kidney disability (to include chronic kidney disease) onset in, or is otherwise related to, his service or any incident therein, to include the documented October 1966 contusion of his left kidney. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating the opinion requested herein. A clear explanation for all opinions would be helpful, as well as a rationale for the opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.