Citation Nr: 0712787 Decision Date: 04/30/07 Archive Date: 05/08/07 DOCKET NO. 00-05 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of removal of the left kidney. REPRESENTATION Appellant represented by: Jeany Mark, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Raffaelli, Associate Counsel REMAND The veteran served on active duty from May 1966 to May 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2000 rating decision by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). In June 2003, the Board issued a decision denying service connection for residuals of removal of the left kidney. The veteran appealed the case to the United States Court of Appeals for Veterans Claims (the Court). The Court remanded the case to the Board because it found that the Board had incorrectly determined that the presumption of soundness did not apply in this case. In June 2006, the Board remanded the case for compliance with the August 2005 Court decision, to include obtaining a VA examination. In July 2006, the Appeals Management Center transferred the case to the Jackson RO for compliance with the Board's Remand. However, the Jackson RO failed to take any action in compliance with the Board's orders and certified the case back to the Board. Clearly, no one at the RO reviewed the case before sending it back to the Board and almost one year has gone by without any action being taken on this veteran's claim. Therefore, the /board has no alternative but to return the case to the RO for compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (stating that a claimant is entitled to full compliance with directives contained in a remand order). The veteran's service medical records show that he underwent surgery to remove his left kidney while in service. The treatment notes associated with the surgery indicate that the veteran was involved in a car accident as a child, and his kidney was injured at that time. The veteran's service entrance examination report did not specifically note a kidney disability. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). To establish service connection, there must be: (1) A medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 2 Vet. App. 247, 253 (1999). Every veteran shall be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. The provisions of 38 C.F.R. § 3.304(b) provided that the veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. This regulation expressly provided that the term "noted" denotes only such conditions as are recorded in examination reports and that a history of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles or on history alone without regard to clinical factors pertinent to the basic character, origin, and development of such injury or disease. 38 C.F.R. § 3.304(b)(1). The provisions of 38 C.F.R. § 3.304(b) have been invalidated in a VA General Counsel opinion, VAOGCPREC 3-2003, insofar as section 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. According to VAOGCPREC 3-2003, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See also Cotant v. Principi, 17 Vet. App. 116 (2003). In deciding a claim based on aggravation, it is emphasized that a determination must be made as to whether the evidence clearly and unmistakably shows the condition was not aggravated during service. The veteran should also be afforded a VA examination to determine the etiology of his residuals from removal of the left kidney. The United States Court of Appeals for Veterans Claims (Court) has held that "fulfillment of the statutory duty to assist ... includes the conduct of a thorough and contemporaneous medical examination...so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (Duty to assist includes providing the veteran a thorough and contemporaneous medical examination when needed.)). Therefore, this case is REMANDED to the Jackson, Mississippi RO for the following actions: 1. The RO should immediately schedule the veteran for a VA examination to determine the nature and etiology of his left kidney disability. The claim's folder should be provided to the examiner. The examiner should review the claim's folder, including the service entrance examination, the service medical records referencing the pre-service car accident, and the veteran's testimony at his personal hearing where he stated he was involved in a car accident before service. In addition, the examiner should review Dr. Reza Motakhaveri's opinion dated in July 2000 and the VA examination and opinion dated in October 2002. The examiner is requested to offer an opinion as to whether the left kidney disability leading up the removal of the kidney in service is clearly and unmistakable related to the injury sustained in a car accident prior to service or that it otherwise clearly and unmistakable existed prior to service. If the left kidney disability pre-existed service, then the examiner is requested to offer an opinion as to whether clear and unmistakable evidence establishes that the veteran's left kidney disability leading up to its surgical removal during service was not aggravated by service. The examiner is requested to offer a complete rationale for any opinion provided. 2. The RO should then readjudicate the veteran's claim, including reviewing all newly obtained evidence. If any benefit sought on appeal remains denied, the appellant and his representative should be provided an SSOC that contains a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ C.W. Symanski 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).