Citation Nr: 0720268 Decision Date: 07/06/07 Archive Date: 07/18/07 DOCKET NO. 05-07 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for right kidney removal. 2. Entitlement to service connection for a lower back condition, to include degenerative disc disease (DDD). REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The veteran served on active duty from May 1962 to January 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND For reasons explained immediately below, the Board believes that this case must be remanded for proper notice in compliance with 38 C.F.R. § 3.159(b)(1) and Pelegrini v. Principi, 18 Vet. App. 112 (2004), and for additional evidentiary development of the veteran's claim of entitlement to service connection for right kidney removal. Regarding proper notice, the Court of Appeals for Veterans Claims (the Court) held in Pelegrini that § 3.159(b) required VA to "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." Id., 18 Vet. App. at 121. The Board observes that January 2004 VCAA notice provided to the veteran fails to comply with the requirements of Pelegrini. Regarding further evidentiary development for the veteran's claim for service connection for right kidney removal, the Board notes that in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In Charles v. Principi, 16 Vet. App. 370, 374-75 (2003), the Court held that where there is evidence of record satisfying the first two requirements for service connection (current disability and service-connected injury or disease), but no competent medical evidence addressing the third requirement (a nexus between the current disability and active service), VA must obtain a medical nexus opinion. In this case, there is evidence of a current disability; the veteran's right kidney was removed in September 1968. There is also evidence in the veteran's service medical records that the veteran complained of chest pain in August 1964 and December 1964, and a statement from H.D., who served with the veteran, which corroborates the veteran's contention that he suffered a chest and back injury during service. Under these circumstances, the board finds that a medical nexus opinion must be obtained per Charles. Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided with appropriate VCAA notice. 2. VBA should arrange for a physician to review the veteran's claims folder. The reviewer should opine, to the extent possible, as to the cause of the removal of the veteran's right kidney, and specifically opine whether it is at least as likely than not that the removal of the veteran's right kidney was related to his military service. If the reviewing physician deems it to be necessary, physical examination of the veteran and/or diagnostic testing should be accomplished. A report should prepared and associated with the veteran's VA claims folder. 3. Following the completion of the foregoing development, and after undertaking any additional developmental action which it deems to be necessary, VBA should readjudicate the veteran's claims of entitlement to service connection for right kidney removal and for a lower back disability. If the benefits sought on appeal remain denied, in whole or in part, VBA should provide the veteran with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).