BVA9501725 DOCKET NO. 91-43 501 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to an increased evaluation for peptic ulcer disease, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service as follows: pre-war service from November to December 1941, beleaguered status from December 1941 to April 1942, prisoner of war status from April 1942 to January 1943, no casualty status from January 1943 to November 1945, and regular Philippine Army service from November 1945 to June 1946. This matter arises from a September 1990 rating decision, whereby the Regional Office (RO) assigned a 10 percent evaluation for an increased evaluation for peptic ulcer disease. The Board of Veterans' Appeals (Board) remanded the case in November 1991, November 1992 and April 1994 for further development of the evidence. The issues of special monthly compensation and an increased evaluation for a psychiatric disability are not presently pending before the Board. The issue of entitlement to additional compensation based on the need for aid and attendance or at the housebound rate, which was previously referred to the RO for action, was withdrawn by the veteran in a letter dated in July 1993. Pursuant to rating decision of September 1993, the RO increased the disability rating for the veteran's psychiatric disability from 10 percent disabling to 30 percent, effective from December 1990. This is a substantial grant of the benefit sought on appeal with respect to that issue, therefore, the Board will not further address that issue. In the Board's remand actions of November 1992 and April 1994, it was noted that the RO had not notified the veteran of the decision to deny a claim for individual unemployability benefits and of his appellate rights. This action does not appear to have been accomplished to date, therefore, the RO is further requested to take appropriate action. REMAND Review of the claims folder indicates that additional development of the evidence is required. In September 1994, the veteran submitted a statement to the RO alleging that he had received two to three weeks of medical treatment, from an unspecified source, for peptic ulcer disease. The RO then prepared a deferred rating decision in October 1994, whereby the veteran was to be contacted for those medical records. Since a letter to the veteran requesting information or copies of the medical records is not in the claims folder, the RO should now attempt to retrieve those records prior to a determination on appeal. In that regard, the Department of Veterans Affairs (VA) has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a) (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist the claimant includes obtaining available medical records that are relevant to the appeal and it was further noted that this duty to assist is "neither optional nor discretionary". Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). Moreover, the Court has also held that the refusal to consider the applicability of a controlling precedent constitutes error as a matter of law. Tobler v. Derwinski, 2 Vet.App. 8, 14(1991). Accordingly, there really is no option in this case, but to once again return it to the RO for further development. If recent medical evidence concerning peptic ulcer disease is forthcoming, the veteran should be scheduled for another VA examination. In that respect, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran which takes into account the records of prior medical treatment. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). In that manner, the VA examiner will have an opportunity to review the latest medical evidence concerning the veteran's condition. This will ensure that the evaluation of the disability is a fully informed one. VA regulations require that disability determinations be based upon the most complete evaluation of the claimant's condition that can feasibly be constructed. For instance, 38 C.F.R. §§ 4.1 and 4.2 require that each disability be viewed in relation to its history, that there be emphasis upon the limitation of activity imposed by the disabling condition and that the disability be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete or inaccurate report and they enable the VA to make a more precise evaluation of the level of disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). Under the circumstances of this case, we find that additional assistance is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers where he has received treatment for peptic ulcer disease from June 1993 to the present. The veteran should be requested to complete and sign the necessary releases. Thereafter, the RO should acquire copies of all available medical records. All attempts to contact the veteran and all named health care providers should be documented for the record. Once obtained, all records must be associated with the claims folder. 2. If relevant medical records are received, the veteran should be afforded a VA special examination in gastroenterology to determine the current extent of the peptic ulcer disease. The examiner should review the entire claims file prior to the examination. All indicated tests should be conducted to include necessary blood studies to determine whether the veteran is anemic and, if so, the reason therefor.. The veteran's service-connected disability should be evaluated in relation to its history with emphasis upon the limitation of activity imposed by the disabling condition in light of the whole recorded history. Duration and frequency of all pertinent symptoms must be described. 3. When the requested developments have been completed and reviewed by the RO, and in the event that the decision remains adverse to the appellant, a supplemental statement of the case should be prepared and furnished to him. He should then be given an opportunity to respond. Thereafter, the case should be returned to the Board in accordance with current appellate procedures. The appellant need take no action until he is further informed. The purpose of this REMAND is to obtain additional information, and no inference should be drawn regarding the final outcome of this claim as a result of this action. C.W. SYMANSKI 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).