BVA9507384 DOCKET NO. 93-12 717 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for gastrointestinal disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Lois N. Petzold, Associate Counsel INTRODUCTION The veteran had active service from May 1942 to October 1945 and from September 1947 to September 1954. The veteran's appeal arises from rating actions of the Chicago, Illinois, Regional Office (RO). By rating action in November 1991, service connection was granted for residuals of removal of plantar warts, and service connection for gastrointestinal disability was denied. A noncompensable rating was assigned for plantar warts. A notice of disagreement was filed in April 1992, requesting service connection for gastrointestinal disability and for entitlement to a compensable rating for plantar warts. Following the issuance of a statement of the case for the referenced issues in August 1992, at a March 1993 travel board hearing before C.W. Symanski, the veteran affirmatively withdrew the issue of entitlement to an increased (compensable) rating for plantar warts and he requested consideration of the additional issue of entitlement to service connection for disability of the feet and ankles due to radiation treatment during service. The RO thereafter denied service connection; however, there is no indication that the veteran was formally advised of the denial or his right to appeal the denial, nor was a statement of the case issued with respect to that issue. Accordingly, the issue of service connection for bilateral foot disorders is not in proper appellate status and it is referred back to the RO for appropriate action. REMAND The veteran contends that he currently suffers from gastrointestinal disability which was incurred during service. He reports that he was hospitalized for appendicitis prior to service in 1937 at Munson Hospital in Traverse City, Michigan. Any available records should be obtained from that facility. The veteran indicates that he suffers "attacks" every two to three years which are a continuation of symptoms suffered during service. VA's duty to assist the veteran in the development of facts pertaining to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994) is heightened in situations where, as in this case, some of the veteran's service medical records have been destroyed during a fire at the National Personnel Records Center (NPRC) in the early 1970's. A request should be made to the NPRC for any available Surgeon General Office (SGO) records from 1950 through 1954 as it is noted that the NPRC certified in July 1991 that SGO records were not available for the veteran from 1942 to 1945. In addition, of record is a January 1981 notice of the award of disability benefits by the Social Security Administration (SSA). Copies of the decision awarding benefits and the medical records upon which it was based may be of assistance is handling the veteran's claim. The United States Court of Veterans Appeals (Court) has held that the duty to assist the veteran in the development of his claim includes obtaining available records which are relevant to the appeal. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). In June 1992, the veteran submitted a chronological list showing his post service private medical treatment for gastrointestinal disability. All referenced health care providers should be contacted and all available records should be obtained. The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121 (1991). This is to ensure that the evaluation of a disability is a fully informed one. Under the circumstances of this case, the Board finds that further assistance is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the NPRC and request that a search of SGO records be made for the period from 1950 through 1954. Once obtained, all records should be associated with the claims folder. 2. The RO should contact the SSA and obtain legible copies of the January 1981 decision which awarded disability benefits to the veteran and the medical records upon which it was based. 3. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for gastrointestinal disability before and following service and he should provide the necessary forms authorizing the VA to obtain the records. Thereafter, the RO should obtain legible copies of all records which have not already been obtained, to include those from Munson Hospital in Traverse City, Michigan from March and September 1937; from Claude Ellis, M.D., Suttons Bay, Michigan from 1946; from S.Z. Frazer, M.D., of Lamesa, Texas in 1958 and 1961; and from G.A. Goshgarian, M.D., from Round Lake, Illinois from 1975 to 1981. Once obtained, all records must be associated with the claims folder. 4. Following completion of above developments, the veteran should be afforded a VA special examination in gastroenterology to determine the nature and extent of all gastrointestinal disability present. All indicated tests should be accomplished. It is imperative that the physician reviews the entire claims folder prior to the examination. All disability should be evaluated in relation to its history in light of the whole recorded history. The examination report should include complete current diagnoses. 5. When the above developments have been completed, the RO must review the claims folder and ensure that the foregoing developments have been completed in full. If any development is incomplete, appropriate corrective action should be implemented. When the requested development is fully completed, the RO should readjudicate the veteran's claim. If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case. They should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. C.W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).