BVA9503013 DOCKET NO. 92-17 918 ) 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 prostatitis on a primary basis and as secondary to a left ureteral calculus. 2. Entitlement to service connection for benign prostatic hypertrophy on a primary basis and as secondary to a left ureteral calculus. 3. Entitlement to an increased (compensable) rating for a left ureteral calculus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 until April 1966. This appeal arises from a July 1991 rating decision and subsequent rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. REMAND There was a rating action in July 1991 which denied service connection on a primary and secondary basis for chronic prostatitis and benign prostatic hypertrophy. The veteran was notified in August 1991 and, during that same month, expressed general disagreement with both issues. There was no RO hearing in October 1991 at which time the issue of an increased (compensable) rating for a left ureteral calculus was raised and during that same month the hearing officer entered a decision on that issue. However, the increased rating issue has never been covered in a statement of the case. The last examination which addressed the status of the left ureteral calculus was a March 1991 VA examination. This is no longer a contemporaneous examination. Caffery V. Brown, 6 Vet.App. 377 (1994). In January 1993 and March 1993 the Board obtained an opinion from a former medical adviser of the Board concerning the question of whether the left ureteral calculus caused chronic prostatitis or benign prostatic hypertrophy. However, the Board has not relied on opinions of its own medical advisers to decide appeals following an August 1994 decision of the United States Court of Veterans Appeals (Court). Austin v. Brown, 6 Vet.App. 547 (1994). In March 1993 the case was further reviewed by the veterans former representative, who indicated, among other things, that the issue of entitlement to an increased (compensable) rating for a left ureteral calculus was being appealed to the Board. In February 1994 the case was administratively remanded to the RO (by letter) so that the veteran could have a second RO hearing, which he had requested. In January 1995 the current representative further reviewed the file and restated the issues for appellate consideration. We construe his restatement of the issues in its broadest context to be as noted on the title page of this decision. Not only are all of these issues inextricably intertwined ( they all involve the genito-urinary system), but at one time or another since 1991, they have all been raised by the RO, the veteran, his former representative and his current representative. The case is REMANDED for the following action: 1. The veteran should be accorded an examination by a VA urologist to ascertain the current severity of his service connected left ureteral calculus. All clinical findings should be reported in detail. Consistent with the 1994 rating criteria for this disorder the examiner should comment on the frequency of attacks of colic, if any, and the requirement for catheter drainage, the presence or absence of infection (pyonephrosis) and whether or not kidney function is impaired. If there is recurrent stone formation, he should comment on the requirement for diet therapy, drug therapy, and the need for, and if needed, the frequency of invasive and non invasive procedures. Reference is made to Codes 7509 and 7510, as amended in 1994. The examining physician should completely review the claims folder prior to the examination. After his examination he should express an opinion as to whether the left ureteral calculus caused either chronic prostatitis or benign prostatic hypertrophy, or both. 2. When the above action has been completed the rating board should review the examination report to ensure that every medical question posed by the Board and deemed necessary to decide this appeal has been answered. Any benefit which is not granted must be covered in a comprehensive supplemental statement of the case; that is one which discusses in detail primary and secondary service connection for prostatitis and/or benign prostatic hypertrophy, as may be applicable, and one which discusses clinical findings in relation to rating criteria for the left ureteral calculus, as may be applicable. Thereafter, as appropriate, the case should be returned to the Board for further appellate consideration. No further action is required of the veteran until notified. The purpose of this remand is to procure clarifying data, to ensure due process of law, and to comply with precedent decisions of the Court. BRUCE E. HYMAN 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. (CONTINUED ON NEXT PAGE) 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).