BVA9506382 DOCKET NO. 92-09 437 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for defective hearing. 2. Whether new and material evidence has been submitted to reopen a claim of service connection for an eye disorder, including glaucoma. REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran, who is the appellant in this case, served on active duty from November 1942 to January 1946. This case was previously before the Board of Veterans' Appeals (Board) in August 1993. The Board found that the veteran had submitted new and material evidence with which to reopen claims for service connection for headaches and defective hearing. In light of those decisions, the case was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, for further development and a de novo review of both issues. The Board requested that the RO obtain records from a private physician, Robert E. Abraham, M.D., to support his statements that the veteran's defective hearing was the result of a head injury in service and that his headaches could also be the result of that injury. While the case was at the RO, the veteran underwent a neurologic examination to determine the nature and extent of any disabilities claimed as residuals of a head injury in service. He also had a hearing at the RO concerning his appeal. In April 1994, the hearing officer confirmed and continued the denial of service connection for defective hearing. He did, however, grant service connection for headaches. and the RO subsequently assigned a 10 percent rating. When the case was before the Board in August 1993, it was noted that the veteran had raised contentions regarding service connection for an eye disorder but that that issue had not been developed or certified for appeal. It was, therefore, referred to the RO for appropriate action. The RO noted that in September 1983, the Board had upheld a denial of service connection for an eye disorder. In July and October 1994, following additional development of the record, the RO and its hearing officer denied service connection for an eye disorder, specifically glaucoma. That issue has not been certified as part of the present appeal; however, it seems evident from the record that the veteran would like to pursue it, and adjudication below appears to be complete. REMAND In September 1994, while the case was at the RO for further development, the veteran requested that his representative be changed from the Disabled American Veterans to James W. Stanley, Jr., Attorney. In November 1994, the RO acknowledged that change in all proceedings before the VA, including present and future compensation claims. There is no indication, however, that Mr. Stanley has been apprised of the actions taken with regard to the veteran's current claims, or afforded the opportunity to present argument specific thereto. The evidence submitted since the Board's decision in September 1983, reveals a long history of eye disorders. VA medical records show that in August 1967, it was noted that the veteran had slight external strabismus of the left eye. Since 1980, he has been followed for cataracts and glaucoma in both eyes. It is unclear what effect, if any, the claimed head injury in service might have had on his eyes. Despite frequent treatment at the VA, the veteran has not had a recent special VA ophthalmologic evaluation. The VA has a statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In light of the foregoing, the Board finds that such development is warranted prior to further appellate consideration. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the veteran's new representative, Attorney James W. Stanley, Jr., and apprise him of all actions taken to date with regard to the current appeal. The RO should inquire whether he wishes to review the file or make any additional comment. Thereafter, the RO should keep Mr. Stanley informed of the progress of the veteran's appeal. Failures to respond or negative replies should be noted in writing and associated with the claims file. 2. The RO should contact the veteran and ascertain the names and addresses of all care givers, including institutions, who treated the veteran for an eye disorder between the time of his discharge from service and 1980. The dates of treatment should also be specified. The RO should further inquire whether the veteran knows of or has any evidence not on file concerning his defective hearing. After obtaining all appropriate authorizations, the RO should contact all care givers so identified and obtain copies of the veteran's treatment records. Those records should then be associated with the claims folder. Failures to respond or negative replies to any request should be noted in writing and also associated with the claims file. 3. When the foregoing actions are completed, the RO should schedule the veteran for a special ophthalmologic evaluation to determine the nature and extent of any eye disability(s) found to be present. All appropriate tests and studies should be performed. The examiner should comment on the etiology of any eye disabilities so identified. He should be asked to render his opinion on whether any eye disorder can be associated in any way with active service, including the service- connected post-traumatic occipital neuritis. This should include, but is not limited to, specific references to the record, as well as any necessary citations to medical literature. Prior to the examination, the claims folder must be made available to the examiner, so that the relevant medical history may be reviewed. 4. When the requested development has been completed, the RO should again consider the veteran's attempt to reopen his claim for service connection for an eye disorder. If the veteran or his representative submit additional evidence regarding service connection for defective hearing, the RO should also readjudicate that matter. Should any decision remain adverse to the veteran, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. 38 C.F.R. § 20.302(c) (1994). Thereafter, if in order, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to the final disposition of any issue. The purposes of the REMAND are to develop the record and to ensure compliance with due process of law. The veteran need take no action unless he is notified. J. J. SCHULE Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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).