Citation Nr: 22017593 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-53 003 DATE: March 25, 2022 REMANDED Service connection for a kidney condition is remanded. REASONS FOR REMAND The Veteran honorably served from October 1967 to October 1969. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2015 rating decision. In November 2019 a Board hearing was held before the undersigned Veterans Law Judge (VLJ), a transcript is of record. In March 2020 and July 2021, the Board remanded the Veteran's claims for further development. 1. Service connection for a kidney condition is remanded. Despite the additional and regrettable delay, a remand is required because there was not substantial compliance with the Board's July 2021 remand directive to provide the Veteran an adequate VA medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the examiner applied the wrong legal standard for medical opinions regarding conditions existing prior to service. Additionally, in an April 2015 statement, the Veteran stated that he was seen in 1970 at a VA facility for a kidney condition. It does not appear this record has been located and associated with the record. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. The AOJ should send a letter to the Veteran and request he identify the specific VA facility that he received treatment for his kidney condition in 1970, then make reasonable efforts to obtain copies of VA treatment records from 1970 to the present. 3. After the above development is completed, the AOJ should arrange for a VA examination or telehealth interview of the Veteran by a medical professional, to determine the nature and likely cause of the Veteran's kidney disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all kidney disabilities present during the appeal period. (b.) For each kidney disability diagnosed, was the disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The examiner MUST address the Veteran's subjective reports of symptoms since service. The examiner is reminded that, by law, VA must consider any disability that "may reasonably be encompassed by" a description of the claim, symptoms reported, and other evidence. By law, the examiner MUST start with the assumption that the Veteran did NOT have a kidney condition before service, and must determine whether there is "clear and unmistakable evidence" that the Veteran's kidney condition existed prior to service (by law, a notation of a history of and kidney conditions on the entrance examination report does not rise to the level of "clear and unmistakable evidence"). Additionally, the lack of evidence does NOT meet the clear and unmistakable evidence standard. (c.) If there was an increase in the severity of the Veteran's conditions(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (c.) If there is no clear and unmistakable evidence that any current condition pre-existed service, then the examiner must opine whether it is at least as likely as not that the disorder is DIRECTLY related to service. The clinician must address the July 2017 VA examination. The examiner's attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (d.) Service treatment records associated with the claims file in May 2020, which show treatment for kidney and bladder issues in service. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.