Citation Nr: 21028592 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-40 710A DATE: May 11, 2021 ISSUE Entitlement to an increased evaluation in excess of 30 percent from June 7, 2013 to October 16, 2019 for nephrolithiasis (kidney stones) with polycystic kidney disease (kidney disorder). REMANDED Entitlement to an increased evaluation in excess of 30 percent from June 7, 2013 to October 16, 2019 for nephrolithiasis (kidney stones) with polycystic kidney disease (kidney disorder) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1989 to May 1993, November 2002 to December 2003, November 2005 to January 2006, September 2007 to November 2007, and from January 2010 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 the Board denied the Veteran's claim for an increased rating for nephrolithiasis with polycystic kidney disease. In April 2020 the RO issued a rating decision which increased the Veteran's rating for his kidney disorder to 100 percent disabling, effective October 16, 2019. As this is not a full grant of the Veteran's claim, the matter is still on appeal before the Board. AB v. Brown, 6 Vet. App. 35, 39 (1993). Based on the April 2020 rating decision the issue has been recharacterized as entitlement to an increased evaluation in excess of 30 percent from June 7, 2013 to October 16, 2019 for nephrolithiasis (kidney stones) with polycystic kidney disease (kidney disorder). The claim has been reworded as noted above. See 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). The Veteran appealed the November 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board's November 2018 decision to the extent that it denied the Veteran's claim for a rating in excess of 30 percent for his kidney disorder for the period on appeal. The JMPR found that the Board's November 2018 decision erred when it failed to provide an adequate statement of reasons and bases for its determination that the Veteran was not entitled to an increased rating for his kidney disorder. Specifically, the parties agreed that the Board failed to discuss potentially favorable evidence of the Veteran's symptoms. After vacating the portion of the Board's decision, the case was remanded pursuant to 38 U.S.C. § 7252 (a) for readjudication of the issue of entitlement to an increased rating, consistent with the JMPR. Consistent with the foregoing JMPR the Board finds that evidentiary development is still required before the claim for an increased rating on appeal can be adjudicated. Entitlement to an increased evaluation in excess of 30 percent from June 7, 2013 to October 16, 2019 for nephrolithiasis (kidney stones) with polycystic kidney disease (kidney disorder) is remanded. The Veteran contends that for the period on appeal his kidney disorder is more severely disabling than contemplated by the current 30 percent rating. The Veteran was afforded VA examinations for his kidney disorder in August 2015 and February 2016. At that time the examiners did not note that the Veteran had any decrease in kidney function. Following the Veteran's most recent VA examination, the record contains a July 2018 VA treatment note where the nurse notated that the Veteran had "a decrease in kidney function from last year" with Creatine levels of 2.9 ("Cr 2.9"). According to 38 C.F.R. § 4.115A, "definite decrease in kidney function" warrants a 60% rating. Pursuant to the JMPR the parties agree that the Board failed to discuss this evidence in determining that a higher rating was not warranted. The Board finds that the July 2018 treatment note discussing a decline in the Veteran's kidney function raises a medical issue that the Board is not competent to address. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, the Board finds that an addendum retrospective medical opinion is necessary to address the nature, extent and severity of the Veteran's service-connected kidney disorder during period on appeal. See Chotta v. Peake, 22 Vet. App. 80, 84 (2008) (If a disability rating "cannot be awarded based on the available evidence," VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim." Id. at 85; (emphasis in the original); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The Board also finds that the examiner should consider and discuss the July 2018 VA treatment note regarding the decrease in the Veteran's kidney function. The Board finds that this additional development is required for the Board to make a decision on this appeal, and to adequately address CAVC Remand directives discussed above. Accordingly, the Veteran's claim must be remanded for an addendum retrospective medical opinion pursuant to the CAVC's directive. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations to procure such records. 2. The claims file and a copy of this remand must be made available to, and reviewed by, the February 2016 VA examiner (or a suitable substitute). The examiner should provide a retrospective opinion to determine the nature and severity of the Veteran's service- connected nephrolithiasis with polycystic kidney disease from June 7, 2013 to October 16, 2019. The examiner must indicate on the examination report that the claims file and copy of this remand were reviewed. If it is determined that another examination is needed to provide the required opinion, the Veteran must be afforded the appropriate VA examinations. The examiner should consider the evidence of the claims file including all lay and medical evidence of record. The examiner should directly address the July 2018 treatment note where the nurse notated that the Veteran had "a decrease in kidney function from last year" with Creatine levels of 2.9 ("Cr 2.9") and determine whether the Veteran had a "definite decrease in kidney function" at any time during the period on appeal. See 38 C.F.R. § 4.115A. The examiner must include the underlying reasons for any conclusions reached. (Continued on next page.) 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.