BVA9501390 DOCKET NO. 90-45 165 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral pterygium. 2. Entitlement to service connection for benign prostatic hypertrophy, claimed as secondary to a service-connected disability. 3. Entitlement to a compensable rating for postoperative right ureteral calculus removal. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel REMAND The veteran had active military service from August 1943 to January 1946. It appears that certain documents once contained in the claims file may have been removed from the file and possibly destroyed by a former Board of Veterans' Appeals (Board) employee. The Board's March 1993 remand indicated that service medical records were no longer included in the claims file. Duplicates of the service medical records, however, were obtained by the regional office (RO) while the claim was in remand status. The Board believes that the record on appeal has been accurately reconstructed and that this case is now ready for appellate review. There is no longer any indication that any records are missing from the claims file. One of the issues before the Board is entitlement to an increased evaluation for a genitourinary disorder. The applicable provisions of 38 C.F.R. Part 4, § 4.115a, however, were changed, effective in February 1994. The RO has not considered the veteran's claim under the new criteria. Therefore, although the further delay in the consideration of the veteran's appeal is unfortunate, the claim must be remanded to the RO. A Department of Veterans Affairs (VA) rating decision dated in November 1950 denied service connection for bilateral pterygium, finding that the condition pre-existed service and that its progress in service was the natural progress of the disease. The veteran was notified of this decision by a letter dated in November 1950, and he did not appeal within one year thereafter. In a rating decision dated in December 1987, the RO denied service connection for an eye disorder, other than bilateral pterygium, and a dental disorder and a back disorder. In July 1988, the veteran timely noted disagreement with this decision. A statement of the case was issued in September 1988. However, in December 1988, the veteran advised the RO that he had not received his statement of the case for his July 1988 notice of disagreement. It is not clear whether the veteran was ever re- sent the September 1988 statement of the case. The veteran has indicated that he is seeking service connection for an eye disorder, other than cataracts, and in addition to bilateral pterygium. This issue must be reviewed by the RO in relation to the effect of the December 1987 denial of service connection for an eye disorder, other than bilateral pterygium, and under the provisions of Manio v. Derwinski, 1 Vet.App. 140 (1991). On the basis of the foregoing, the case is remanded to the RO for the following actions: 1. After the necessary information and authorization are obtained from the veteran, the RO should obtain copies of all treatment records for the disorders at issue, VA or private, inpatient or outpatient, since June 1993. Any records obtained should be added to the claims file. It should be stressed that the Board is interested in copies of actual clinical records, rather than narrative statements. 2. Thereafter, the RO should review the veteran's claims. The issue of service connection for an eye disorder, other than cataracts and bilateral pterygium, should be reviewed under the holding in Manio. If it is determined that the December 1987 denial of service connection for an eye disorder became final, then it should be determined whether new and material evidence has been submitted to reopen the claim. If so, the claim should be reviewed on a de novo basis. If the December 1987 denial did not become final, then the claim should also be reviewed on a de novo basis. The veteran's claim for an increased evaluation should be reviewed under the new criteria which became effective in February 1994. If, after RO review, the decision remains adverse to the veteran, a supplemental statement of the case, which contains all applicable law and regulations including the new criteria for evaluating the veteran's service-connected genitourinary disorder, should be issued and the veteran and his representative afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this remand is to ensure compliance with the requirements of due process of law. By this remand, the Board intimates no opinion as to the ultimate determination warranted in this case. No action is required of the veteran until he receives further notice. WILLIAM J. REDDY 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).