BVA9501630 DOCKET NO. 92-15 685 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for kidney disability and, if so, whether a review of all of the evidence, old and new, warrants a grant of that benefit. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for back disability and, if so, whether a review of all of the evidence, old and new, warrants a grant of that benefit. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from May 1952 to October 1955. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1991 rating decision by the Los Angeles, California, Regional Office (RO). A notice of disagreement was received in December 1991, and a statement of the case was issued in March 1992. A substantive appeal was received in June 1992. The case was the subject of a Board decision dated in September 1993 which included a remand to the RO for additional action. A supplemental statement of the case was issued in April 1994, and the case is now again before the Board for appellate review. The veteran is represented by the Military Order of the Purple Heart. In view of the following remand decision of the Board, appellate review of the issues of whether new and material evidence has been received to reopen claims for entitlement to service connection for kidney disability and back disability is being deferred. REMAND In its September 1993 decision, the Board observed that the veteran had not initiated a timely appeal from a July 1977 rating decision which, in part, denied entitlement to service connection for hearing loss. The Board also found in its September 1993 decision that new and material had been received on the issue of entitlement to service connection for hearing loss and that this claim had therefore been reopened. The remand portion of the September 1993 Board decision included a direction to the RO to consider the hearing loss claim reopened and to proceed with a de novo review of that issue. However, after reviewing the RO's April 1994 rating decision and the supplemental statement of the case issued that same month, it is clear that the RO has continued to find that the hearing loss claim has not been reopened. In other words, the RO has apparently not understood the September 1993 holding of the Board as it related to the hearing loss claim issue. As a consequence, the veteran has not been afforded the benefit of a de novo review on that issue under the second step of the two-part analysis mandated by the United States Court of Veterans Appeals (Court) in Manio v. Derwinski, 1 Vet.App. 140 (1991). Action by the RO to undertake such a de novo review on the hearing loss issue is therefore necessary before the Board can proceed with its appellate review. Bernard v. Brown, 4 Vet.App. 384 (1993). The remand portion of the Board's September 1993 decision also included a direction to the RO to request additional information from the veteran regarding treatment for the injuries he claims to have suffered as a result of a fall from a mountain while stationed at Fort Carson, Colorado. The record shows that a letter was sent to the veteran in October 1993 requesting this information, but that no response was received. However, the Board notes a January 1994 Report of Contact (VA Form 119) which documents a communication from a friend of the veteran reporting that the veteran was incarcerated in the "Calipatria State Prison." A claimant for Department of Veterans Affairs (VA) benefits has the duty to keep the VA apprised of his or her current address. Hyson v. Brown, 5 Vet.App. 262 (1993). However, in view of the need for additional action by the RO as outlined above, the Board believes it appropriate to take steps to ascertain the veteran's current whereabouts and to once again request from him information pertinent to his claim. For the reasons set forth above, the case is hereby REMANDED to the RO for the following actions: 1. The RO should take appropriate steps, including contacting the "Calipatria State Prison," to locate the veteran and ascertain his current address. Once the veteran has been located, a written request should be mailed to him requesting the names and addresses of medical care providers who treated him for his claimed injuries suffered as a result of a fall from a mountain while stationed at Fort Carson, Colorado. He should also be requested to submit any additional relevant evidence. The RO should take steps to develop any additional evidence based on any information provided by the veteran. 2. Thereafter, the RO should undertake the second step of the Manio analysis which entails a de novo review of the entire record to determine if all of the evidence, both old and new, warrants a grant of entitlement to service connection for hearing loss. If this determination is adverse to the veteran, the RO should furnish the veteran (at his current address as verified by the RO pursuant to the action set forth in the preceding paragraph 1) and his representative with a supplemental statement of the case setting forth a summary of the evidence, a citation to and discussion of applicable laws and regulations, and a clear and detailed analysis of the reasons for the RO decision under the second step of the Manio analysis; that is, a discussion of why the veteran's claim for this benefit is not warranted by a review of all of the evidence. The veteran and his representative should then be afforded a reasonable opportunity to respond. After completion of the above, the case should be returned to the Board for further review of all issues remaining in appellate status. The purpose of this decision is to ensure that the September 1993 remand of the Board is given effect, to comply with the holdings of the Court, and to ensure that the veteran is afforded due process of law. The Board intimates no opinion as to the ultimate determinations to be made in this case. EUGENE A. O'NEILL 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).