BVA9500982 DOCKET NO. 93-08 195 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a stomach disability. 2. Entitlement to service connection for a colon disorder. 3. Entitlement to service connection for a prostate disability. 4. Entitlement to service connection for appendicitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse and Austin Adams ATTORNEY FOR THE BOARD James R. Siegel, Counsel REMAND The veteran served on active duty from January 1947 to January 1949. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a July 1992 rating action of the Regional Office (RO) which denied the appellant's claims of entitlement to service connection for disabilities of the stomach, colon, and prostate, and residuals of appendicitis. Most of the veteran's service medical records are unavailable, presumably having been destroyed in a fire at the records center in 1973. The only available service medical record is the report of the veteran's discharge medical examination conducted in December 1948. It discloses that the veteran was hospitalized at Ft. Belvoir in April 1948 for acute appendicitis. He was treated reportedly with bed rest, and no operation was performed. On examination in December 1948, the abdomen and viscera were described as normal. During a hearing at the RO in November 1992, the veteran testified that he had been treated by Dr. Herman Sampliner shortly after his separation from service, apparently for a perforated colon. He has indicated that the physician died, and that he contacted the office of Dr. Terence Isakov, who maintained the records from Dr. Sampliner. However, a representative of Dr. Isakov's office reportedly advised the veteran that the records from Dr. Sampliner were in "sad shape (stored in shoe boxes in the basement)" and that it would be almost impossible to locate any patient information. However, an official request to Dr. Isakov to procure those records has not, as yet, been made. Such records, if available, could prove useful in the adjudication of this case. In addition, the Board notes that when the veteran was hospitalized in a private facility in March 1960, he related a history of having undergone a transurethral resection of an obstructing prostate gland approximately eight years earlier. An attempt was made by the RO to obtain these records, to no avail, as an official of the Huron Hospital indicated that their records "start from 1960 to 1968." 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). The United States Court of Veterans Appeals (the Court) has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet.App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). In addition, the Court in O'Hare v. Derwinski, 1 Vet.App. 365 (1991), held that the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule is "heightened" where the service medical records are presumed destroyed. Under the circumstances of this case, the Board finds that additional development of the record is necessary. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses, and approximate dates of treatment for all medical providers from whom he received treatment for genitourinary or gastrointestinal disabilities since his discharge from service in 1949. After securing the necessary signed authorization for release of this information, the RO should obtain copies of any records identified by the veteran for association with the record. 2. The RO is specifically directed to attempt to obtain any records of gastrointestinal or prostate treatment by Dr. Sampliner in the late 1940s and 1950s, which are apparently in the custody of Dr. T. Isakov, located at the following address: 5187 Mayfield Road, Lyndhurst, OH 44124. 3. The veteran should then be afforded a VA examination by specialists in gastroenterology and genitourinary disorders, if available, to determine the nature and extent of his gastrointestinal and prostate disabilities. All necessary tests should be performed. The examiner is requested to furnish an opinion concerning the etiology of any diseases found, and whether it is at least as likely as not that any gastrointestinal or prostate disability found is related to service. The claims folder should be made available to the examiner for review prior to the examination. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case, and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. J. F. GOUGH 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).