BVA9508129 DOCKET NO. 91-38 006 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for residuals of a hysterectomy. 2. Entitlement to service connection for a gastrointestinal disability, other than diverticulosis. 3. Entitlement to service connection for a bladder disorder. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a left ear disorder. 6. Entitlement to an increased (compensable) evaluation for diverticulosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Associate Counsel INTRODUCTION The veteran had active service from November 1952 to August 1956. Service connection for postoperative residuals of hysterectomy was denied by the Board of Veterans' Appeals (Board) in June 1979, and the veteran and his representative were furnished copies of that decision. This matter came before the Board on appeal from rating decisions in May and August 1990. The Board remanded the case to the RO for additional development in June 1992. By rating action dated in May 1993, service connection was granted for diverticulosis and a less than compensable evaluation was assigned, effective from April 20, 1990. The veteran has appealed the noncompensable rating assigned for this disability. § REMAND The veteran contends, in essence, that salpingitis, which was diagnosed in service, did not accurately reflect the true nature of her gynecological disorder both during and shortly after service. The veteran argues that her hysterectomy in February 1971 was due to chronic genitourinary problems which began in service. As noted above, the Board remanded the case to the RO in June 1992 to attempt to obtain additional medical records and for a VA examination. The Board requested a written opinion to specific questions concerning the etiology and/or relationship, if any, of the veteran's service connected salpingitis or pyelitis to any additional disability which may have led to the hysterectomy in 1971, and whether the veteran has a gastrointestinal disorder or bladder disorder which can be attributed to her problems in service or to the hysterectomy? Although VA examinations were performed in October 1992, the examiner's failed to provide the requested opinions. In a similar situation, the United States Court of Veterans Appeals (Court) found that a lack of a request medical opinion "particularly disturbing," and a neglect of the VA's "duty to assist [the veteran] in the development of his claim." Smith v. Brown, 5 Vet.App. 335 (1993). In light of the veteran's contentions and the complexity of the medical questions involved, the Board is unable to adjudicate the appeal on the current evidence of record. Accordingly, the case is REMANDED to the RO for the following development: 1. The veteran again should be afforded a VA examination by a specialist in urology. The claims folder and a copy of this REMAND must be made available to the examiner for review before the examination. All pertinent testing should be performed. Based on her/his review of the record, the examiner should provide an opinion as to the following questions: a) What is the medical probability the veteran's service- connected salpingitis or pyelitis caused or contributed materially in the development of additional disease which led to the hysterectomy performed in 1971? b) What is the medical probability that the veteran now has a bladder disorder which is the result of the salpingitis or pyelitis treated in service or which is related to the hysterectomy performed in 1971? The examiners should report their findings in detail and provide a thorough explanation for the conclusions reached. The examinations should be conducted in accordance with the guidelines set out in the Physician's Guide for Disability Evaluation Examinations. (IB-11-56, March 1, 1985). The findings should be typed or otherwise recorded in a legible manner for review purposes. 2. The veteran should be examined by a specialist in gastroenterology in order to determine the nature and likely etiology of any organic gastrointestinal disease, other than the service-connected diverticulosis, and the current severity of the service- connected diverticulosis. All indicated testing should be performed in this regard, and the claims folder should be made available for review by the examiner. Based on her/his review of the case, the examiner should render a medical opinion as to the medical probability that any clinically identified pathology, other than diverticulosis, is due to manifestations exhibited in service, as claimed by the veteran. In addition, the examiner should comment on the degree of disability currently caused by the service-connected diverticulosis. 3. Following completion of the development requested above, the RO should again review the record and ensure that all of the foregoing development have been completed in full. If any development is incomplete, including the requested opinion, appropriate corrective action is to be implemented. Thereafter, if any benefit sought on appeal remains denied, the veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. STEPHEN L. WILKINS 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) (1993).