BVA9505973 DOCKET NO. 93-13 994 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of colon cancer as secondary to the service-connected psychophysiologic gastrointestinal disorder 2. Entitlement to an increased evaluation for a psychophysiologic gastrointestinal disorder, rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active military service from June 1942 to March 1946 and from July 1952 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) of Reno, Nevada, and Houston, Texas. The case originated in the RO in Reno, Nevada, but was moved to Houston, Texas when the veteran moved to Texas. By rating action of June 1992, it was held that there was no new and material evidence submitted to reopen a claim of entitlement to service connection for a left knee disorder, and that secondary service connection for a cardiovascular disorder and a total rating for individual unemployability were denied. It is not clear that the veteran was notified of this action. In any event, these issues are not developed for appellate review and this appeal is limited to the two issues set forth on the title page. REMAND The VA has a duty to assist a veteran in developing facts pertinent to a potentially well grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). It is contended in this case that the veteran's residuals of colon cancer are etiologically related to his service-connected psychophysiologic gastrointestinal reaction. It is asserted that the service-connected disorder was, for years, manifested by frequent episodes of diarrhea. It is further asserted that a "Dr. Woodward" at the VA clinic in Orlando has offered the opinion that there is such a relationship. That opinion, if rendered is not on file. The record does, however, contain the report of a November 1992 VA examination which contains the exact opposite opinion. The VA does have a duty to obtain its own records for the claims folder, and as such, the Orlando records will be requested. Additionally, the veteran reported at the time of his March 1992 substantive appeal that he was going to get some "private" treatment the next week. The report of that treatment, if rendered is not on file. Review of the record also reveals that there has been no recent examination to determine the nature and extent of the service connected disorder at issue. It has been years since a psychiatric examination has been conducted. The currently assigned 30 percent rating is protected from reduction. 38 U.S.C.A. § 110. It would also aid in consideration of this appeal if the manifestations of the service-connected disorder could be differentiated from the nonservice-connected pathology. Finally, on his substantive appeal the veteran checked that he did not want a hearing "unless necessary". He should be offered a chance for a hearing while the case is in remand status, and informed that he need not come to a hearing unless it is his desire to do so. In view of the foregoing, this case is REMANDED for the following actions: 1. The RO should, with the veteran's assistance as necessary, obtain copies of any and all treatment records for VA or private treatment rendered since 1990. Records obtained should specifically include those from the VA Orlando facility where the veteran has reported treatment by Dr. Woodward. Release of information forms should be requested from the veteran as needed. If there is a failure in obtaining some records, the claims folder should contain documentation of the attempts made. Additionally, the veteran and his representative should be informed of the negative results. 38 C.F.R. § 3.159. 2. The veteran should be scheduled for comprehensive VA psychological and gastrointestinal examinations. All indicated tests should be performed and all clinical findings should be reported in detail. The claims folder should be made available to the examiners for review prior to the examinations so that they are familiar with the veteran's medical background. Following examination of the veteran, and review of the claims folder, specifically the November 1992 VA examination and any records located from Dr. Woodward, the examiners (especially the gastrointestinal specialist) should enter an opinion as to whether the service connected disorder at issue caused the carcinoma of the colon for which surgery was performed. The opinion should, if it is at variance with either the result of the November 1992 opinion, or with a written opinion of Dr. Woodward, attempt to provide a medical explanation as to the variation. It is not clear that the claims folder has been available to those offering opinions in the past. To the extent possible, the examiners should also differentiate the service-connected pathology from the nonservice-connected pathology. 3. Thereafter, the veteran should be offered the opportunity for a hearing. The veteran may be instructed that hearings are not "necessary", and that it is his choice as to whether he desires to render oral testimony. When the aforementioned development has been accomplished the case should be reviewed by the RO. In the event the benefits sought are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he is notified. MICHAEL D. LYON 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).