BVA9508404 DOCKET NO. 93-12 713 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for right leg disability. 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to an evaluation in excess of 20 percent for residuals of a shell fragment wound to the right chest, pleural cavity injury with retained foreign body. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from December 1965 to January 1968. He was overseas approximately 1 year and 7 months, served in Viet Nam, and received a Purple Heart. This appeal arises from rating actions in January, September and November 1991, and December 1992, by the Department of Veterans Affairs (VA) Indianapolis, Indiana, Regional Office (RO). The December 1992 rating action deferred action on several service connection issues based on exposure to Agent Orange, pending further instruction from Central Office. These issues have not been developed for appellate review, are not inextricable intertwined and will not be considered by the Board of Veterans' Appeals (the Board) at this time. The RO's attention is directed to these claims for action deemed appropriate. One of the issues developed for appeal was service connection for right leg injury. By rating action in December 1992, service connection was granted for residuals of a shell fragment wound to the right ankle, rated noncompensable. The veteran's representative, in May 1993 acknowledged the grant of service connection for the right ankle but statements made by the representative have been construed as continuing a claim for right leg disability. As the right leg and right ankle are separate anatomical areas, the Board will consider the right leg issue. The representative also disagreed with the rating code assigned for the right ankle disability. The RO's attention is directed to that claim for action deemed appropriate. The veteran's representative, in May and June 1993 raised the issue of entitlement to service connection for a cardiovascular disorder, secondary to the service-connected lung disorder, and for tinnitus. The Board notes that service connection was denied for tinnitus by rating action in December 1971. However, the June 1972 notice to the veteran of that denial appears to only refer to an "ear condition" and not tinnitus specifically. The RO's attention is directed to those claims for action deemed appropriate. It is argued by the veteran's service representative that there has been no attempt to develop stressors and combat history. In this regard, it is documented that the veteran is in receipt of a Purple Heart medal. "...service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor." 38 C.F.R. § 3.304(f) (1993) Therefore, exposure to combat stressors has been conceded by the VA, and no need to develop stressors and combat history is shown. Any issue not specifically referred to in the remand below, is deferred. REMAND The veteran's representative reported in June 1993 that the original denials of benefits for the veteran were based on incomplete service medical records, as additional service medical records were subsequently received. The representative points out that because the records were not date stamped on receipt by the RO, it cannot be concluded that they were reviewed by the RO in denying benefits. The representative asks that the claim be remanded so that the issues can be adjudicated in light of all of the service medical records. The Board points out, that for the most part the service medical records in question are essentially duplicates of records already in file, except the separation physical examination in December 1967, which show audiometric findings. In October 1991, the veteran failed to report for a scheduled VA medical examination to evaluate the pleural cavity injury. The record indicates that the RO apparently did not consider Note (2), under 38 C.F.R. § 4.97, Diagnostic Code 6818 (1994), when the veteran was examined in May 1992, and rated in December 1992. His representative also notes that he was not provided pulmonary function studies when examined in 1992. In this regard, the pulmonary function test results in October 1990 were not usable because of the veteran's questionable effort. This case is remanded for actions as follows: 1. The RO should secure all records of treatment for the veteran since May 1992, and associate them with the claims folder. 2. The veteran should be permitted to submit or identify any other evidence in support of his claim. Medical evidence or opinion of a relationship between the disabilities at issue and any incidents of the veteran's service would be helpful. Evidence identified should be obtained by the RO. 3. The RO should review the recently received service medical records, with appropriate attention to the audiometric findings on separation examination in December 1967. 4. The veteran should be provided an examination by a thoracic surgeon in order to determine the nature, extent and status of the service-connected shell fragment wound to the chest with pleural cavity injury and retained foreign body. All necessary special studies and tests are to be accomplished, with special attention to Note (2), to include but not limited to exercise tolerance testing. With any pulmonary function testing the veteran should be counseled as to the necessity of proper cooperation in order to have valid test results. The examiner should account for the outpatient reports of dyspnea, hemoptysis and emphysema, and their relationship to the service-connected injury, if any. The claims folder and a copy of this remand must be reviewed by the examiner prior to the examination. 5. Following completion of the above actions, the claims for service connection should be reviewed, with consideration of whether they are well grounded. If any claim is not well grounded, the veteran should be advised of the type of evidence needed to establish a well grounded claim and assisted in obtaining it. If the RO eventually finds that any of the claims are well-grounded, a determination should be made as to whether any further development, including physical examinations are necessary prior to adjudication of the claim. Thereafter, the development should be undertaken. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the examination of the pleural cavity chest injury does not include all test reports, or special studies as shown in Note (2), appropriate corrective action is to be implemented. Thereafter, the case should be reviewed. If any benefit sought remains denied, the veteran and his representative should be provided with a supplement statement of the case and be given opportunity to respond. The case should then be returned to the Board for further appellate consideration. RENÉE M. PELLETIER 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) (1994).