Citation Nr: 1002009 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 07-22 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a colon disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from May 1969 to December 1972. This matter is on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge in November 2009. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board of Veterans' Appeals' (Board's) docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND By law, assistance to a veteran in processing a claim shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records reveal that the Veteran had ulcerative proctitis to a distance of approximately 25 centimeters (cm) from the anal verge in 1971 and 1972. He was treated with hydrocortisone suppositories. Post-service VA treatment records include a June 2004 pathology report which showed microscopic adenoma of the colon and hyperplastic polyp of the rectum. A June 2009 colonoscopy revealed a sigmoid mass at 40 cm from the anal verge, and pathology reports identified the mass as an infiltrating moderately differentiated adenocarcinoma. The diagnosis and colonoscopy were performed by a fee-basis physician, Dr. Hamilton, and his records are not included in the claims folders. A December 2006 VA examination report and medical opinion found no current evidence of proctitis and no relationship between the rectal and colon polyps found in 2004 and service. However, colon cancer was not diagnosed as the time of the December 2006 VA examination. The Veteran asserts that his diabetes mellitus was caused by the hydrocortisone treatment for his proctitis in service. He also reports that he currently has colitis and that his colon cancer and other rectal and colon problems are related to the proctitis in service. It is unclear from the record whether the Veteran's in- service proctitis was an early manifestation of or otherwise led to the development of his colon cancer and it is also unclear whether his hydrocortisone treatment in service led to his diabetes mellitus. Accordingly, a VA examination to determine the nature and etiology of his diabetes mellitus and his colon problems would be helpful in the adjudication of the claims. The claims file currently includes VA treatment records dated from November 2003 to June 2007 and from June to November 2009. The Veteran testified that he receives all of his medical treatment from VA. These VA records indicate, variously, that he was diagnosed with diabetes mellitus in 2001, 2002, or 2003. Any VA records developed since service should be obtained. In addition, treatment records between June 2007 and June 2009 should be obtained, along with any treatment records developed since November 2009. As these records may include information pertinent to the Veteran's claims, they should be obtained. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). In addition, the claims folders do not contain the treatment records prepared by the private, fee basis, gastrointestinal physician, Dr. Hamilton, who initially diagnosed the Veteran's colon cancer. These records should also be obtained. Lastly, the Veteran testified that he was in receipt of Social Security Administration (SSA) disability benefits due in part to his diabetes mellitus. The record does not reflect that VA sought to secure copies of the Veteran's SSA records. In Murincsak v. Derwinski, 2 Vet. App. 363 (1992), the United States Court of Appeals for Veterans Claims (Court) held, in essence, that records pertaining to SSA disability claims in the possession of SSA are constructively in possession of VA (see 38 C.F.R. § 3.201), and that if VA does not seek to secure such records from SSA, it violates its duty to assist the Veteran under 38 U.S.C.A. § 5107(a). The Court has adhered to this precedent and has consistently remanded to the Board cases in which SSA records have not been sought. Therefore, the Board has no alternative but to remand these matters for such records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Obtain and associate with the claims files VA medical records for the Veteran dated (1) prior to November 2003, particularly from 2001 forward pertaining to diabetes mellitus diagnosis and treatment; (2) from June 2007 to June 2009; and (3) from November 2009 to the present. 2. After obtaining any necessary authorization from the Veteran, associate with the claims files medical records, including the June 2009 colonoscopy report and any pathology reports, from the fee basis gastroenterologist, Dr. J. Kent Hamilton, Digestive Health Associates of Texas, P.A., 411 North Washington Ave. Suite 6000, Dallas, TX 75246, from June 2009 to the present. 3. The RO should secure for the record copies of the complete SSA records pertaining to the Veteran, to include all medical records considered in any determination on his claim for SSA disability benefits. If such records are unavailable, it should be so noted for the record (with an explanation of the reason why they are unavailable). Review the records received from SSA, and arrange for any further development suggested by the information therein (e.g., if they identify any further pertinent treatment- providers, secure the records of such treatment). 4. Then, arrange for a VA gastrointestinal examination of the Veteran to determine the nature and etiology of any current colon disability. All indicated studies should be performed. After examination of the Veteran and review of the record, including the Veteran's service medical records pertaining to evaluation and treatment of ulcerative proctitis in service, and all his post-service medical records, provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any current colon disability, including colon cancer, was caused or chronically worsened by the ulcerative proctitis in service. 5. Then, arrange for a VA examination of the Veteran to determine the nature and etiology of his diabetes mellitus. All indicated studies should be performed. After examination of the Veteran and review of the record, including the Veteran's service medical records reflecting hydrocortisone treatment in service, and all his post-service medical records, provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that his diabetes mellitus was caused by the hydrocortisone treatment or other event in service. 6. Then, re-adjudicate the claims. If any claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2009).