Citation Nr: 21023748 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-19 796A DATE: April 21, 2021 REMANDED Entitlement to an initial disability rating in excess of 60 percent for service-connected chronic kidney disease (CKD) prior to October 8, 2012, and in excess of 80 percent from October 9, 2012, to April 28, 2014, is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from September 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. When the Veteran’s claim for entitlement to service connection for CKD came before the Board in June 2019, it was remanded for additional development. Following the additional development, the RO issued a November 2020 Rating Decision granting a separate evaluation for CKD previously service-connected as nephropathy due to diabetes mellitus, with staged disability ratings of 60 percent effective May 26, 2006; 80 percent effective October 9, 2012; and 100 percent effective April 29, 2014. According to a notation by the Decision Review Officer (DRO), “[t]he issue should have been addressed as a [claim for increase] for the [CKD], [service-connected] as nephropathy.” Effective April 29, 2014, the Veteran is in receipt of the maximum schedular rating for CKD. Based upon the foregoing, the Board has recharacterized the issue on appeal as reflected above. While further delay is regrettable, for the reasons set forth below, the Board finds that remand is again required. Finally, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS FOR REMAND Entitlement to an initial disability rating in excess of 60 percent for service-connected CKD prior to October 8, 2012, and in excess of 80 percent from October 9, 2012, to April 28, 2014, is remanded. The Veteran’s representative argues in his March 2021 Brief that remand is required to afford the Veteran an opportunity to submit medical records dated prior to 2014 showing dialysis treatments. As support, the representative cites to, inter alia, the November 2020 Supplemental Statement of the Case (SSOC) stating that, “[b]ecause you were not previously notified that VA needed additional medical evidence showing the start date of your dialysis treatment, if you provide such medical evidence, VA may reconsider the effective date for the 100 percent evaluation for your [CKD].” According to the SSOC, “[t]he earliest medical evidence citing dialysis treatment being required for your [CKD] is found in the April 29, 2014 VA examination.” The Board observes that, in February 2013, a private treating physician, Dr. T.N., noted stage four CKD and that, “[t]he different types of dialysis options were discussed with the [Veteran], including peritoneal dialysis and hemodialysis,” as well as, “[o]ptions for renal transplantation.” In April 2013, Dr. T.N. noted stage five CKD and that, “[t]here is no urgent need for dialysis at this time,” as the Veteran “wants to go over this with his wife.” In an August 2013 statement, the Veteran indicated he is “now on dialysis treatment, three days a week.” VA treatment notes dated November 2013 indicate the Veteran started hemodialysis and “feels better.” The Veteran also indicated in a December 2013 statement that, “I have started my dialysis at DV Dialysis” in California. In March 2014, the Veteran submitted another statement reiterating that he received dialysis three days a week at DV Dialysis Center. The Veteran underwent an in-person VA examination in April 2014 and, according to the VA examiner, the Veteran started dialysis three times weekly in November 2013. According to the Veteran’s October 2016 statement, he started dialysis the “latter part of 2013.” In August 2019, a VA examiner reported the Veteran was on hemodialysis three times weekly since November 2013. Based upon the foregoing, it is unclear at what point the Veteran’s CKD actually required regular dialysis. Moreover, the Veteran’s representative argues that remand is required to ensure VA satisfies its duty to assist by obtaining evidence necessary to substantiate the claim, particularly, private treatment records regarding dialysis prior to 2014. The Veteran identified these private treatment records relevant to his claim; however, the RO failed to make any attempt to obtain the identified records. As these records are potentially pertinent to the Veteran’s claim, a remand is required to attempt to obtain them. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(e)(2); Ivey v. Derwinski, 2 Vet. App. 320-23 (1992). Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding private treatment records relevant to his claim of entitlement to an increased initial disability rating for service-connected CKD prior to April 29, 2014. (Continued on next page) Specifically, the RO must attempt to obtain all records from private healthcare providers who treated the Veteran prior to April 29, 2014, including complete records of treatment from DV Dialysis and Dr. T.N. Updated Authorization and Release forms should be obtained from the Veteran should he want VA to attempt to obtain those records, and/or any other relevant evidence, on his behalf. All attempts to retrieve such records must be associated with the claims file. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.