BVA9503848 DOCKET NO. 91-20 277 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease, claimed as a residual of exposure to Agent Orange and asbestos. 2. Entitlement to an increased evaluation for a bladder disorder, currently rated 10 percent disabling. 3. Entitlement to an increased evaluation for hypothyroidism, currently rated 10 percent disabling. 4. Entitlement to an increased evaluation for prostatitis, currently rated 10 percent disabling. 5. Entitlement to an increased evaluation for diabetes mellitus, currently rated 10 percent disabling. 6. Entitlement to an increased evaluation for intervertebral disc syndrome, currently rated 10 percent disabling. 7. Entitlement to a compensable evaluation for residuals of duodenal and gastric ulcer. 8. Entitlement to a compensable evaluation for residuals of urethral stricture. 9. Entitlement to a compensable evaluation for bilateral defective hearing. 10. Entitlement to a total disability evaluation based on individual unemployability due to service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from March 1954 to March 1980. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO), dated in December 1989, March 1990, September 1990, March 1991, January 1992, and July 1994. In November 1991, the Board remanded the case to the RO in order to ensure that the appellant received his due process rights. The case was again remanded by the Board in May 1992 in order to permit the RO to consider the appellant's Agent Orange claim under newly promulgated regulations pertaining to Agent Orange. REMAND This case was returned to the Board in November 1994 for further appellate consideration. At that time, the Board discovered that the appellant's service medical records, relating to 26 years of active military service, were not associated with the claims file. Recognizing the importance of having the service medical records in order to properly evaluate the appellant's claims for increased evaluations for several service-connected disabilities under Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board contacted the RO to request that the appellant's service medical records be sent to the Board, or, if they were not at the RO, then to have the RO request the records from the National Personnel Records Center in St. Louis, Missouri. Unfortunately, the only records received by the Board from the RO pursuant to the above request were recent VA medical records that may have an effect on two of the appellant's claims because they indicate that he has prostate carcinoma. The Board notes that the additional evidence has not been considered by the RO because it was submitted after the case was last returned to the Board by the RO in November 1994. The record does not show that the appellant has waived his right to have the agency of original jurisdiction undertake the initial consideration of this evidence with regard to his claim, under the provisions of 38 C.F.R. § 20.1304(c) (1994). Furthermore, the Board notes that the service medical records have yet to be associated with the claims file, and that the appellant has not undergone a comprehensive medical examination to evaluate his service-connected disabilities since August 1989. The VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Additionally, the Court, in Schafrath v. Derwinski, 1 Vet.App. 589 (1991), has placed a great deal of emphasis on the regulatory requirements specifying that a historical review of the disorder in issue must be made before an adequate assessment regarding the status of the disorder, in both a social and industrial context, may be determined. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1994). The examiner's role in observing these requirements is found in the VA's Physician's Guide for Disability Evaluation Examinations, §§ 1.12, 1.13, 1.14 (Paul M. Selfon, M.D., Editor- in-Chief 1985). The Board regrets having to request another remand, but, with the requirements laid down by the Court to ensure that a veteran receives proper adjudication of his claim, we find that additional action must be completed by the RO in this case before appellate consideration of the appellant's claims may be undertaken by the Board. Therefore, the case is REMANDED to the RO for the following actions: 1. The RO should obtain the appellant's service medical records and associate them with the claims file so that they are available for review when evaluations of his service-connected disabilities are undertaken. 2. The RO should schedule the appellant for examinations by genitourinary, endocrinology, orthopedic, gastrointestinal, and audiology specialists in order to ascertain the nature and severity of his service-connected disabilities. All indicated special studies, including X-rays, and range of motion studies, should be performed, if not medically contraindicated. The claims file and a copy of this REMAND are to be made available to each of the specialists prior to the specialist's examination. 3. Following completion of the foregoing, the RO must review the claims file and ensure that all of the requested development has been conducted and completed in full. If any development is incomplete, including the absence of any test reports, special studies, or opinions requested as part of the examination, appropriate corrective action is to be implemented. After the above requested actions have been completed, the RO should review the appellant's claims with regard to (1) the additional evidence obtained and (2) the medical evidence received by the Board that was not previously considered by the RO. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purposes of this REMAND are to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion is intimated as to the merits of the appellant's claims by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. JACK W. BLASINGAME 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 so assigned. 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).