BVA9506027 DOCKET NO. 91-49 503 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased evaluation for the residuals of a thyroidectomy with anxiety neurosis, currently evaluated as 10 percent disabling. 2. Entitlement to secondary service connection for diabetes mellitus. 3. Entitlement to secondary service connection for cerebral vascular accident. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran had active service from March 1955 to March 1957. This appeal arises from a January 1991 rating decision of the New York Department of Veterans Affairs (VA) Regional Office (RO). In that decision, an increased evaluation for the residuals of a thyroidectomy with anxiety neurosis and entitlement to a nonservice-connected pension were denied. A hearing was held before a hearing officer at the regional office in June 1991 where the issue of entitlement to nonservice-connected pension was withdrawn. In April 1992, the Board of Veterans' Appeals (Board) remanded the instant claim for further development. Another personal hearing was provided the veteran at the RO before a hearing officer in January 1994. REMAND The veteran and his accredited representative maintain, in essence, that the veteran's thyroid condition is more severe than the current evaluation reflects. They also assert that the veteran's diabetes and cerebral vascular accident, for which he is not service connected, should be secondarily service connected, as they believe they were caused as a result of the veteran's service-connected thyroid condition. The veteran contends that he suffered a stroke because he was not given medication for his thyroid condition while in service and his diabetes developed as a result of the stroke. A review of the record reveals that the veteran had a cerebral vascular accident in May 1990 and was admitted to the North Shore University Hospital at that time. After he was stabilized, he was admitted to the VA hospital in Northport, New York. The hospital records of the veteran's initial hospitalization at the North Shore University Hospital are not associated with the claims folder. Additionally, during the veteran's June 1991 personal hearing before a hearing officer at the RO, the hearing officer asked the veteran if he had any objections to the RO obtaining a statement from his private physician, Anthony Luciano, M.D. The hearing officer also stated that he would attempt to get the veteran's records from Dr. Luciano. (Hearing transcript p. 7). In a letter dated June 1991 from the RO to Dr. Luciano, the RO requested that Dr. Luciano furnish a report of findings and diagnoses related to his treatment of the veteran from 1990 to 1991. In a letter to the veteran dated June 1991, the RO requested that the veteran assist in obtaining requested medical evidence from Dr. Luciano. There is no indication in the record that Dr. Luciano was ever specifically requested to provide his treatment records related to his treatment of the veteran. Further, the veteran underwent a VA psychiatric examination in March 1994 in connection with this claim. The examiner noted at the outset, prior to the examination, that there was no chart available. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals has held that the duty to assist a claimant includes obtaining available medical records which are relevant to the claimant's appeal and adequate VA examinations. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). In the instant claim, the RO has never requested the veteran's treatment records from Dr. Luciano, only a report of findings and diagnoses, nor were the veteran's treatment records from the North Shore University Hospital obtained. Finally, the Court held in Green v. Derwinski, 1 Vet.App. 121 (1991), that the statutory duty to assist includes conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment. The veteran's most recent psychiatric examination performed in March 1994 was done without the benefit of the veteran's claims folder. In view of this, the veteran needs to be examined after the examiner has reviewed the entire claims folder in order to comply with the duty to assist. Under the circumstance of this case, additional assistance is required. Accordingly, this case is REMANDED to the RO for the following: 1. After obtaining an appropriate release of information from the veteran, the RO should contact the North Shore University Hospital and request all medical records, concerning the veteran's hospitalization in May 1990, and any other treatment received at that institution by the veteran. All records should be obtained and associated with the claims folder. 2. After obtaining an appropriate release of information from the veteran, the RO should contact Anthony Luciano, M.D., and request all medical records of treatment he has provided for the veteran for his thyroid condition, diabetes, and cerebral vascular accident. All records obtained should be associated with the claims folder. In addition, the RO should request records of the veteran's treatment at the VA Medical Center in Northport, New York from June 1994 to the present. 3. The RO should then schedule the veteran for a comprehensive VA psychiatric examination in order to ascertain the nature and severity of any psychiatric disability present. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, must be conducted. The claims file must be made available to and reviewed by the examiner in its entirety prior to the requested study. The examiner must assign a global assessment of functioning score consisting with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (3d ed. rev., 1987), and explain what the assigned score represents. A complete rationale for any opinion expressed must be provided. 4. The veteran should also be examined by a specialist in endocrine disorder in order to ascertain the nature and severity of his service connected thyroid disorder. In addition the examiner should render an opinion for the record as to whether it is at least as likely as not that the service connected thyroid condition caused the cerebrovascular accident and diabetes. The claims file must be made available to the examiner for his review prior to the examination. All indicated tests and special studies should be conducted. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. When the above developments have been completed, the case should be reviewed by the RO. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The veteran need take no further action until he is informed. C.W. SYMANSKI Member, Board of Veterans' Appeals (Continued on next page) 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).