Citation Nr: 21031481 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 18-34 288 DATE: May 22, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for kidney failure is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1982 to March 1985. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 Regional Office (RO) rating decision. In a January 2020 decision, the Board denied the Veteran's claims for service connection for diabetes and kidney failure. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While the appeal was pending at the Court, a Joint Motion for Partial Remand (JMPR) was filed by both parties. In October 2020, the Court granted the JMPR to vacate the January 2020 Board decision and remand the issues of entitlement to service connection for diabetes and kidney failure back to the Board for development consistent with the terms of the JMPR, specifically to obtain outstanding private treatment records and to reexamine the evidence of record, seeking any other evidence necessary. The case was returned to the Board. 1. Entitlement to service connection for kidney failure 2. Entitlement to service connection for diabetes The Veteran contends that his diabetes and kidney disease are related to active service. Per the October 2020 Court Order granting the JMPR, VA must obtain the Veteran's outstanding private treatment records that may be pertinent to the issues on appeal. In the July 2018 lay statement, the Veteran's daughter stated that the Veteran was diagnosed with diabetes during an emergency room visit at DePaul Hospital in August 1985 after service. In February 2021 correspondence, the Veteran submitted a waiver of opportunity to submit additional evidence or argument, indicating that he has no additional evidence or argument to submit and that he waives any remaining time to submit additional evidence or argument. However, in the April 2021 informal hearing presentation from the Veteran's representative, it indicates that, as noted in the October 2020 Court remand, there is no evidence that VA made any attempts to obtain additional information about the records identified by the Veteran's daughter, authorization, or the records themselves. As there is the potential of additional relevant evidence in the outstanding private medical records pertinent to the claims currently on appeal, VA has a duty to assist in obtaining those records. Accordingly, a remand is necessary to ensure that due process is followed and that, to the extent possible, there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As noted in the JPMR, and as the Board previously determined that the evidence tends to show that the Veteran's kidney failure is caused by his Type II diabetes mellitus. Accordingly, the Veteran's claim for service connection for kidney failure is inextricably intertwined with his claim on appeal for service connection for diabetes mellitus. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the claim for service connection for kidney disease must be remanded. The matters are REMANDED for the following action: 1. Identify and obtain, with authorization from the Veteran, any pertinent, outstanding private treatment records and associate them with the claims file, including records from DePaul Hospital in August 1985. 2. If additional pertinent treatment records are obtained, then schedule the Veteran for a VA examination if it is necessary to decide the claims. If an examination is scheduled, the examiner must review the Veteran's claims file in conjunction with the examination. (a.) The examiner must provide an opinion as to whether the Veteran's diabetes mellitus at least as likely as not (a 50 percent or greater probability) began in or is otherwise related to active service. (b.) The examiner must provide an opinion as to whether the Veteran's kidney disease at least as likely as not (a 50 percent or greater probability) began in or is otherwise related to active service. (c.) The examiner must provide an opinion as to whether the Veteran's kidney disease is at least as likely as not (a 50 percent or greater probability) either caused or aggravated by (i.e., worsened) his claimed diabetes mellitus. The examiner must address the Veteran's contentions and lay statements of record. The examiner must provide a clear and complete rationale for all opinions and conclusions reached. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.