Citation Nr: 21041350 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 19-07 549 DATE: July 8, 2021 REMANDED Entitlement to a compensable rating for a kidney removal scar is remanded. Entitlement to a disability rating in excess of 60 percent for neoplasm of the kidney is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded in February 2020 for further development; it has since been re-assigned to the undersigned. As an initial matter, the medical evidence associated with the record appears to be incomplete. To date, the claim file only contains treatment records from Northport VA Medical Center (VAMC). However, in January 2021, the Veteran transferred medical care to the Bradenton VA Clinic; no records from that clinic have been associated with the claim file. Additionally, a January 2021 VA treatment record also notes that the Veteran saw a private dermatologist in Florida. As private treatment records are likely to contain pertinent information related to the Veteran's claim, they should be obtained. Additionally, as more recent VA records are likely to contain pertinent information, and because VA treatment records are constructively of record, they must be obtained. 1. Entitlement to a compensable rating for a kidney removal scar is remanded. The March 2021 VA scars examiner noted one scar on the right upper flank that measured 48 x 0.8 centimeters; the scar was not painful, tender to palpation, or unstable, and did not have underlying soft tissue damage. Although the Veteran reported sporadic pain in the scar area with lifting, pulling, pushing, twisting, or sitting in a soft chair, the examiner determined that there was tenderness only with deep palpation to underlying tissue that was unrelated to the scar; she determined that the findings and examination were unrelated to the scar since the scar itself was not painful to light palpation. Instead, the examination supported the Veteran's underlying symptoms of pain related to a muscle condition that was secondary to the surgical procedure. The Board finds this examination confusing and requests clarification in determining whether the Veteran has underlying soft tissue damage or related muscle damage. In the March 2021 kidney conditions examination report, the VA examiner (the same examiner from the VA scar examination) also concluded that scar pain was only reported at VA examinations and was not documented in other medical examinations. The Board finds this conclusion inadequate as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In an August 2017 statement, the Veteran reported that his surgical scar causes him "substantial pain during minor physical activity." In his December 2017 notice of disagreement, the Veteran stated that the surgical scar and removal of the 11th rib has "consistently caused [him] pain ever since the surgery." In an April 2021 statement, he stated that he "complained of the pain constantly subject to surgery from 1999" and that those complaints were made to primary care providers at the VA, "whether or not they chose to record them." During June 2019 VA treatment, the Veteran reported fleeting twinges of pain in his right flank, with pain running along the scar from his right-sided nephrectomy. The doctor indicated that flank pain could be neuropathic versus pain from post-surgical adhesions. Accordingly, on remand, the Veteran's reports of pain must be adequately addressed. 2. Entitlement to a disability rating in excess of 60 percent for neoplasm of the kidney is remanded. In April 2021 correspondence, the Veteran stated that he "agree[s] with the 60% evaluation for neoplasm of the kidney based on VA criteria in relationship to [his] condition." It is unclear whether the Veteran wishes to withdraw his claim for an increased rating for neoplasm of the kidney. As the other issue on appeal is being remanded anyway, the Veteran should clarify in writing whether he would like to withdraw this issue. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a clarification letter with regard to his wishes concerning the status of his claim for a rating in excess of 60 percent for neoplasm of the kidney. If the Veteran wishes to withdraw this claim, he should specifically request this in writing. 2. Obtain copies of VA treatment records from January 2021 to the present from all VA treatment facilities and confirm whether prior treatment records are available from any VA clinics in Florida (or elsewhere that are not already associated with the record). 3. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received for the disabilities on appeal, to include records from a private dermatologist he sought treatment from while in Florida. See January 2021 VA treatment record. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 4. Thereafter, arrange for a VA medical examination (or telehealth interview) to determine the current severity of the Veteran's kidney scar and any related muscle damage throughout the appeal period (i.e., August 2017). The claim file should be made available to and reviewed by the examiner. All findings should be reported in detail. Based on interview and examination of the Veteran, and review of the record, the examiner should address the following: (a) Provide a full description of the disability and report all signs and symptoms associated with such disability. The examiner should specifically note whether the Veteran's reported pain is due to a separate muscle injury and/or underlying internal scar tissue and/or neuropathic injury, and, if so, the severity of such disability. (b) The examiner should also provide a description of the scar, including the size and location, and discuss whether the scar is associated with underlying soft tissue damage or causes any limitation of the affected part. (c) If found, the severity of any muscle injuries (i.e. slight, moderate, moderately severe, or severe) and the severity of any neurological impairments (i.e. mild, moderate, severe incomplete paralysis, or complete paralysis of the affected nerves) should be assessed. Identify the specific muscle groups associated with any muscle injuries and identify the specific nerves associated with any neurological impairments. This should also include all symptoms and related impairment that would be present without the relief provided by medications used to treat the disabilities. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.