BVA9501728 DOCKET NO. 93-08 248 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss, and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from June 1943 to October 1945, from August 1950 to January 1953, and was a prisoner of war of the German government from March 1944 to April 1945. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the veteran's claim to reopen the issue of entitlement to service connection for hearing loss on the basis that he had not submitted new and material evidence. In January 1988, the RO denied the veteran's claim of entitlement to service connection for hearing loss on a de novo basis. On the basis of a review of the entire evidence of record, it is concluded that, since the RO's January 1988 denial, evidence has been submitted which is not duplicative or cumulative, and when viewed in the context of the evidence previously of record, provides a reasonable possibility of a different outcome. Specifically, at an September 1991 VA examination, the examiner concluded that the veteran's hearing loss was due to acoustic trauma from flying in aircraft. Service personnel records reveal that the veteran flew frequently during his active service (23 missions with the 8th Air Force, accumulating 150 combat hours). The examiner also indicated that the veteran's past ear infection caused additional damage to his right ear's hearing ability. In an August 1953 rating decision, service connection was granted for recurrent otitis externa and a noncompensable evaluation was assigned. For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). Based on the evidence cited above, the Board finds that new and material evidence has been submitted. Accordingly, the veteran's claim is reopened. REMAND Service medical evidence reveals treatment for otitis media in August 1950. At a June 1953 VA examination the veteran complained of a pain behind his right ear with ringing. As noted above, service connection was granted for recurrent otitis externa in an August 1950 rating decision. In an August 1987 VA examination, the examiner noted a hearing impairment in the left ear, past ear infection. In a September 1991 VA audiological examination, the veteran noted periodic tinnitus. The examiner found moderate to severe mixed hearing loss. Also, as noted above, at an September 1991 VA examination the examiner concluded that the veteran's hearing loss was due to acoustic trauma from "flying in aircraft." The examiner also indicated that the veteran's past ear infection caused additional damage to his right ear's hearing ability. However, in a January 1992 opinion from an RO physician, it was concluded that the veteran's hearing loss was "definitely not a result of his s[ervice]-c[onnected] otitis externa and acoustic trauma." In view of the evidence of record, the veteran's claim appears to be well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). Based on the evidence of record it is unclear if the veteran's hearing loss is service connected. With regard to the opinion of the September 1991 VA examiner, it is unclear if the examiner reviewed the veteran's claims folder or based the opinion totally on the veteran's statements. Although the examiner can render a current diagnosis based on his examination of the veteran, it bears emphasis that, without a thorough review of the record, his opinion regarding etiology can be no better than the facts alleged by the veteran. Swann v. Brown, 5 Vet.App. 229, 233 (1993). In effect, it is mere speculation. See Black v. Brown, 5 Vet.App. 177, 180 (1993). With regard to the January 1992 opinion, the RO physician did not examine the veteran and apparently based that opinion on the October 1991 VA examination, whose examiner concluded that the veteran's condition was service related. The United States Court of Veteran's Appeal (Court) has indicated a concern about the use of medical opinions from certain VA physicians. See generally Austin v. Brown, 6 Vet.App. 547 (1994). The Board "'must review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal.'" EF v. Derwinski, 1 Vet.App. 324, 326 (1991) (quoting Myers v. Derwinski, 1 Vet.App. 127, 129 (1991)). On the basis of the evidence of record the veteran may be seeking entitlement to service connection for tinnitus. The VA has a duty to assist a veteran in the development of facts pertinent to well-grounded claims. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1993). The Court has held that the duty to assist includes the duty to obtain thorough and contemporaneous VA examinations, including examinations by specialists when indicated, and the duty to obtain pertinent medical records. Counts v. Brown, 6 Vet.App. 473 (1994); Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121 (1991); Littke v. Derwinski, 1 Vet.App. 90 (1990). Where the record before the Board is inadequate to render a fully informed decision and clarification of the evidence is essential for a proper appellate decision, the Board must remand the case, specifying the action to be undertaken. 38 C.F.R. § 19.9 (1993). In view of the state of the record, we conclude that further development, as specified below, is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request him to clarify whether he is seeking service connection for tinnitus. 2. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers who may possess additional records pertinent to his claim(s), including any treatment for his hearing loss since service separation. After securing the necessary release(s), the RO should obtain copies of the records identified for association with the record. 3. The RO should schedule the veteran for a VA ear, nose and throat examination by a physician who has not seen him previously, if possible, to determine the nature and extent of any hearing loss and tinnitus found to be present. All indicated studies should be performed. In addition, it is requested that the examiner review the record and provide an opinion as to the etiology of any current hearing loss and tinnitus found. The claims folder should be made available to the examiner for review prior to the examination of the veteran. 4. Thereafter, the RO should readjudicate the veteran's claim of entitlement to service connection for hearing loss on a de novo basis. If indicated, the RO should also adjudicate the issue of entitlement to service connection for tinnitus. The veteran is advised that the claim for service connection for tinnitus will not be before the Board unless the determination of the RO is unfavorable, and the veteran files a notice of disagreement and completes all procedural steps necessary to appeal a claim to the Board in accordance with 38 U.S.C.A. § 7105 (West 1991). If the benefits sought on appeal are not granted to the veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. J.F. GOUGH 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) (1993).