Citation Nr: 1303317 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-09 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for lower urinary tract symptoms, claimed as urethritis. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to June 1957. This matter comes before the Board of Veterans'' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that denied entitlement to service connection for lower urinary tract symptoms, claimed as urethritis. In his substantive appeal, the Veteran requested the opportunity to testify at a videoconference hearing before the Board. A hearing was scheduled for a date in November 2012. The Veteran, however, failed to report for the hearing and, since that time, has not requested another opportunity. As such, the Board finds that the Veteran has withdrawn his hearing request. 38 C.F.R. § 20.704 (2012). He did offer testimony at an RO hearing in December 2011. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC). The Veteran will be advised if further action is required on his part. REMAND The RO, including the Decision Review Officer, made impressive efforts to develop evidence in support of the Veteran's claim; including trying to contact the Veteran's VA treating physician to obtain a supporting opinion; insuring that the Veteran completed authorizations to obtain private records and providing an examination and a medical. The record suggests; however, that additional development is warranted. The Veteran was afforded a VA examination in October 2011. The Veteran was asked to provide an opinion as to whether current urethritis was related to service. The examiner provided an opinion with regard to urethritis. The examiner; however, diagnosed current lower urinary tract symptoms (LUTS). It is unclear from the examination report whether the examiner's opinion as to etiology extended to LUTS. The Board is required to view the Veteran's claim as encompassing all diagnoses pertaining to his claimed symptoms. Clemons v. Shinseki, 23 Vet. App. 1 (2009). It also appears that the VA examiner did not have an opportunity to review private treatment records and the Veteran's hearing testimony received by the RO after the examination. VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012) (requiring that the Board remand a claim to the agency of original jurisdiction, if clarification is needed). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). The Veteran authorized VA to obtain relevant records from Dr. H, who he reported had been treating him since "the 1990's." A hand written note on a January 2012 letter to Dr. H., and returned with medical records to the Board, states that "Chart is large. If more records are needed, please send bigger return envelope." In addition, a medical treatment note from the Veteran's private physician dated in December 2006 indicates that the Veteran was hospitalized for acute urinary tract infection in September 2006 at "the Veterans hospital." These records have not been associated with the claims file. In addition, the Veteran was also noted to have a history of left nephrectomy for renal cell carcinoma in December 1987. While there are some records related to the Veteran's 1987 kidney treatment in the file, these do not appear to be complete. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). 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) (2012). Expedited handling is requested.) 1. The agency of original jurisdiction should obtain records of the Veteran's VA hospitalization in December 2006 for a urinary tract infection. 2. The Veteran should be asked to provide authorization for VA to obtain any remaining outstanding records of relevant treatment by Dr. Haley; and any other private treatment provider. If the Veteran fails to provide authorizations, he should be advised to obtain and submit the records himself. If any requested records cannot be obtained, the Veteran should be informed; told of the efforts made to obtain the records; and of any additional actions that will be taken with regard to the claim. Amendments to the Veterans Claims Assistance Act generally require more than one request for private treatment records. 2. After obtaining any additional records, the examiner who provided the October 2011, VA examination should be asked to review the claims file; including relevant records in Virtual Va. The examiner should then provide an opinion as to whether any genitourinary disease or disability demonstrated since March 2011, is the result of a disease or injury in service (including the reported sore or maceration on the penis and the symptoms reported by the Veteran as having occurred in service). The examiner should provide reasons for these opinions. The opinion should take into account the Veteran's reports of his history and symptoms. The absence of supporting clinical records is not a sufficient basis, by itself, for rejecting the Veteran's reports. If the October 2011 examiner is not available, another physician should review the record and provide the necessary opinions. 3. If any benefit sought on appeal remains denied, a supplemental statement of the case should be issued. The appeal should then be returned to the Board, if otherwise in order. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2012).