BVA9501460 DOCKET NO. 93- 06 907 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased (compensable) evaluation for postoperative cholesteatoma, right ear, revision mastoidectomy, otitis media and occasional tinnitus. 2. Entitlement to an increased (compensable) evaluation for high frequency hearing loss, right ear. 3. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for a period of convalescence following surgery in August 1990. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from December 1977 to December 1981 and from March 1982 to May 1982. The record shows that the veteran raised the issue of service connection for a psychiatric disorder secondary to his service connected disabilities. This issue has not been addressed by the RO or developed on appeal. As it is not in proper appellate status or inextricably intertwined with the issue on appeal, it will not be further addressed in this decision but is referred to the RO for appropriate action. REMAND With respect to the veteran's claims concerning increased ratings, the record shows that during the hearing conducted at the RO in May 1992, he testified that he was receiving regular treatment for his service connected ear disability from both a private physician and the VA. However, the record does not reflect that any attempt has been made to obtain these records. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). This duty includes the requirement that VA base disability determinations upon the most complete evaluation of the claimant's condition that can feasibly be constructed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Furthermore, it has been held that the fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. The veteran has testified that he continues to receive regular treatment for his service connected ear disability, the records of which have not been associated with the claims file. As these records are relevant to the evaluation of the claimed disability, adequate examination and disability evaluation determination requires that they be obtained and reviewed. Accordingly, further development in this regard is required. 1. The veteran should be contacted at his most recent address of record (See letter to the veteran from the Board dated April l5, l993) to identify the places at which he has received treatment since October 1990, for his right ear disability. After obtaining any appropriate authorization from the veteran, the RO should attempt to obtain legible copies of all records of treatment identified and in particular, the clinical records of Jose Berrios, M.D. 9911 Seminole Blvd, Suite D, Lakeside Medical Plaza, Seminole, Florida 34642, dated after October 1990; the records of Allen Finkelstein, D.O., 789 Highland Ave., Largo, Florida, 34640; outpatient treatment records from the VA Medical Center at Bay Pines dated from January 1991 to July 1991 and dated after October 1991, and the report of treatment the veteran received at the Emergency Room of the Morton Plant Hospital in April or May 1992. 2. After the preceding development has been accomplished, the veteran should be scheduled for a special examination of the ear, the purpose of which is to determine the nature and extent of his service connected ear disability. All indicated tests and studies should be accomplished, to include an audiological evaluation, and the examination should be conducted in accordance with the pertinent provisions of the VA Physician's Guide for Disability Evaluation Examinations. The claims folder must be made available to the examiner in order for that person to be familiar with the veteran's pertinent history and he or she is requested to offer an opinion with respect to the functional impairment caused by the veteran's service connected disability. The examiner should comment on the degree of functional disability present due to pain as supported by adequate pathology. Upon completion of the above, the RO should review the evidence and enter its determination. If any decision remains adverse to the veteran, he and his representative should be provided with a supplemental statement of the case and given an opportunity to respond to it before the case is returned to the Board for further review. In any event, the case should be returned to the Board for consideration of the claim regarding entitlement to a temporary total rating for convalescence following surgery in August 1990, which is held in abeyance pending the development requested by this Remand. No action is required of the veteran until he is further informed. I. S. SHERMAN 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).