Citation Nr: 21026821 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-41 364 DATE: May 4, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for status post-operative left kidney surgery for left hydronephrosis ureteropelvic junction stenosis is remanded. Entitlement to service connection for a lower back and/or sacroiliac disability, including as secondary to the residuals of left kidney surgery, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to June 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2019, the Veteran and his wife testified at a hearing before the undersigned. In May 2019 and April 2020, the Board remanded this matter for further development. The case has been returned to the Board at this time for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to a disability rating in excess of 10 percent for status post-operative left kidney surgery for left hydronephrosis ureteropelvic junction stenosis is remanded. The April 2020 Board remand noted that the Veteran had been provided VA examinations to evaluate his residual urinary and renal symptomatology related to his in-service left kidney surgery, but that no examination had been provided to evaluate any residual symptoms related to possible muscle injury from the in-service left kidney surgery. Thus, the matter was remanded for new examinations to evaluate the reported symptomatology. The Veteran was afforded a VA nephrology examination in October 2020, however, there was no discussion of the Veteran's symptoms related to possible residual muscle injury. Accordingly, remand for new a VA examination is warranted. 2. Entitlement to service connection for a lower back and/or sacroiliac disability, including as secondary to the residuals of left kidney surgery, is remanded. Pursuant to the April 2020 Board remand, the Veteran was afforded a VA back examination in October 2020. The Board finds this VA examination to be inadequate for the following reasons. First, the VA examiner did not provide any rationale regarding whether the Veteran's back disabilities were aggravated beyond their natural progression by the Veteran's service-connected left kidney surgery residuals. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (findings of "not due to," "not caused by" and "not related to" are insufficient to address the question of aggravation under 38 C.F.R. § 3.310 (b)) Second, the VA examiner did not address conflicting medical records and lay statements. Specifically, the Veteran has testified that (1) he was told by private clinicians that his lower back and sacroiliac pain is due to his in-service kidney surgery (for example, one clinician told him his back pain is due to the way the muscles healed after the surgery that his lower lumbar was pulled out of alignment), and (2) his claim for workmen's compensation for lower back and/or sacroiliac pain caused by reaching for a tray while working in 1993 was denied because it was determined that the Veteran's resulting lower back and/or sacroiliac pain was due to his in-service kidney surgery. In addition, there are conflicting medical records including an April 2011 private treatment record noting that the Veteran's myofascial pain is probably due to his previous surgery and subsequent surgery four years later which resulted in weakened musculature, and a May 2011 evaluation performed by a physician completing a worker's compensation evaluation reflecting that the Veteran's back pain started in 1989 after his in-service kidney surgery. Finally, the Chief of Urology at a VA Medical Center noted in a January 2016 VA treatment record that the Veteran has chronic pain associated with his previous surgery of the left kidney. Third, the VA examiner did not address the Veteran's contentions that (1) almost immediately after his in-service kidney surgery, his stomach greatly expanded such that it was pumped, thus effecting his recovery from the surgery and causing his lower back and/or sacroiliac pain, and (2) the scar tissue resulting from the injury has caused his lower back and/or sacroiliac pain. These contentions are supported by an October 1989 service treatment record which notes that, after his in-service kidney surgery, the Veteran complained of pain as if his abdominal wall was tearing when he moved quickly and that the Veteran was guarding his left flank somewhat. Fourth, the VA examiner did not address the Veteran's left iliac lesion. Fifth, it is unclear whether the VA examiner understood that the Veteran claims to have woken up during a 2010 back treatment rather than during his in-service kidney surgery. For these reasons, remand for a new VA opinion is warranted. 3. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the rating assigned for the Veteran's service-connected status post-operative left kidney surgery for left hydronephrosis ureteropelvic junction stenosis, as well as the Veteran's claim of entitlement to service connection for a lower back and/or sacroiliac disability, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician who has not previously opined regarding the Veteran's claim to determine the current severity of the Veteran's service-connected status post-operative left kidney surgery for left hydronephrosis ureteropelvic junction stenosis. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In providing this opinion, the VA examiner must address the Veteran's symptoms related to possible residual muscle injury, described as left flank pain "in his back." If the examiner finds that the Veteran's symptoms related to possible residual muscle injury are not related to the service-connected disability, this must be expressly stated and a complete rationale must be provided for this conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Obtain an opinion from a qualified clinician who has not previously opined regarding the Veteran's claim to determine whether any lower back and/or sacroiliac disability found during the period on appeal is related to the Veteran's military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should identify all lower back and/or sacroiliac disabilities found during the period on appeal. For each lower back and/or sacroiliac disability identified during the period on appeal the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service, including his left kidney surgery. In addition, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any lower back and/or sacroiliac disability found during the appeal period was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected status post-operative left kidney surgery for left hydronephrosis ureteropelvic junction stenosis. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran's lower back and/or sacroiliac disability prior to aggravation by the service-connected status post-operative left kidney surgery for left hydronephrosis ureteropelvic junction stenosis. Please note, causation and aggravation are separate concepts and must be addressed independently. If arthritis is diagnosed the examiner must opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In providing these opinions the VA examiner must address the Veteran's contentions that (1) he has experienced lower back and sacroiliac pain since his in-service kidney surgery, (2) almost immediately after his in-service kidney surgery, his stomach greatly expanded such that it was pumped, thus effecting his recovery from the surgery and causing his lower back and sacroiliac pain, (3) the scar tissue resulting from the in-service kidney surgery has caused his lower back and sacroiliac pain, (4) he was told by private clinicians that his lower back and sacroiliac pain is due to his in-service kidney surgery (for example, one clinician told him his back pain is due to the way the muscles healed after the surgery that his lower lumbar was pulled out of alignment), (5) his claim for workmen's compensation for lower back and/or sacroiliac pain caused by reaching for a tray while working in 1993 was denied because it was determined that the Veteran's resulting lower back and/or sacroiliac pain was due to his in-service kidney surgery, (6) he woke up during a 2010 back treatment, causing further lower back and/or sacroiliac pain, (7) he fell out of a plane while in service. The examiner is advised that he or she may not dismiss the Veteran's report of symptoms capable of lay observation solely on the basis that such complaints were not corroborated by contemporaneous treatment records. In addition, the VA examiner must address the Veteran's (1) October 1989 service treatment record which notes that, after his in-service kidney surgery, the Veteran complained of pain as if his abdominal wall was tearing when he moved quickly and that the Veteran was guarding left flank somewhat, (2) April 2011 private treatment record noting that the Veteran's myofascial pain is probably due to his previous surgery and subsequent surgery four years later which resulted in weakened musculature, (3) May 2011 evaluation performed by a physician completing a worker's compensation evaluation reflecting that the Veteran's back pain started in 1989 after his in-service kidney surgery, and (4) January 2016 VA treatment record by the Chief of Urology at a VA Medical Center reflecting that the Veteran has chronic pain associated with his previous surgery of the left kidney. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.