BVA9507459 DOCKET NO. 93-16 280 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a left ear disorder. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for an intestinal disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard E. Coppola, Associate Counsel INTRODUCTION The veteran served on active duty from February 1941 to September 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of October 1992 from the Providence, Rhode Island, Regional Office (RO) which denied service connection for hearing loss, a left ear disorder and an intestinal disorder. REMAND The claims folder discloses that the veteran previously raised a claim for a stomach condition. The evidence of record at that time included the service medical records, clinical records from the Newport, Rhode Island, United States Naval Hospital, dated from November to December 1945, and July 1946, and reports of VA compensation examinations dated in August 1946 and September 1947. In December 1947, the RO denied service connection for a stomach disorder. The RO notified the veteran of the denial of service connection by letter dated December 17, 1947. The veteran did not appeal that determination. In October 1991, the veteran submitted his claim for an intestinal condition and indicated that he had received treatment at the Newport, Rhode Island, United States Naval Hospital shortly after discharge. It is evident that the veteran's current claim is the claim for disability that was previously denied. It appears that the RO did not apply the proper standard of review in adjudicating the current claim for service connection for an intestinal disorder. Additionally, it appears that the statement of the case is deficient with respect to this issue. 38 C.F.R. § 19.29 (1994). The United States Court of Veterans Appeals (Court) has held that where a prior denial of service connection by the RO is final, the threshold question is whether new and material evidence has been presented to reopen the veteran's claim for service connection. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991); 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). The Board finds that further action by the RO is necessary under these circumstances. In February 1992, the RO denied the veteran's claim for a compensable rating for service-connected hemorrhoids. The veteran submitted a notice of disagreement with respect to that denial in April 1992. The RO has not issued the veteran a statement of the case with respect to that issue. The Board finds that additional action by the RO is necessary prior to appellate review. In the October 1991 claim for benefits the stated that he was treated for the claimed intestinal condition at the Newport, Rhode Island, United States Naval Hospital shortly after discharge. The evidence includes clinical records from that facility which are dated from November to December 1945, and July 1946. The veteran should clarify whether these include the treatment records referenced in his claim. The veteran indicated that he had received recent treatment for his service-connected hemorrhoids at the Providence, Rhode Island, VA Medical Center. A December 1991 statement from a physician indicates treatment at that facility chronic gastrointestinal problems and bilateral ear problems. The physician also indicated that the veteran was scheduled for treatment and evaluation of the ears in February 1992. In his April 1992 claim for benefits, he stated that he received treatment at that facility for his hearing and intestinal problems from 1980 to the present. He also stated that he has not received any treatment for these disabilities by private physicians. Under the present circumstances, the Board finds that additional development of the evidence is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should request all records showing treatment for hearing loss, a left ear condition and an intestinal disorder from the Providence, Rhode Island, VA Medical Center, which are dated from 1980 to the present. The veteran should also identify the names and addresses of any medical care providers, VA or otherwise, who have treated him for his service- connected hemorrhoids since January 1992. After obtaining any needed authorization from the veteran, the RO should obtain copies of all these records. 2. The RO should notify the veteran that the evidence includes clinical records from the Newport, Rhode Island, United States Naval Hospital, which are dated from November to December 1945, and July 1946. The veteran should clarify whether these are the records referred to in connection with his service connection claim for an intestinal condition. If not, or if the veteran is not certain, the RO should contact that facility and ascertain whether or not there are any additional records of treatment for the veteran. The RO should obtain copies of all available records that are not currently part of the claims folder. 3. The veteran should then be afforded any indicated VA examination(s) to determine the nature and extent of any hearing loss, left ear condition, intestinal disorder and current residuals of the service-connected hemorrhoids. The scope of the examinations should be broad enough to cover all residual conditions which are suggested by the veteran's complaints, symptoms or findings. The examination(s) should be conducted in accordance with the Physician's Guide for Disability Evaluation Examinations. All necessary tests should be performed. The physician(s) must be provided the claims folder for review prior to examination. Each physician should provide an opinion as to the etiology of any hearing loss, left ear disorder or intestinal disorder diagnosed and the degree of probability, if any, that such disability is caused by or related to active service, or is caused by a service- connected disability. 4. The case should then be reviewed by the RO and any issues adjudicated, including whether new and material evidence has been submitted to reopen a claim for service connection for an intestinal disorder, and if so, whether service connection is warranted based on all the evidence of record, both old and new. The rating decision should reflect consideration of all potentially applicable criteria. If the decision remains adverse to the veteran in any way, he and his representative should be furnished with a supplemental statement of the case which includes the issue of a compensable rating for service- connected hemorrhoids, summarizes the pertinent evidence, fully cites the applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is further informed. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).