BVA9505817 DOCKET NO. 93-14 692 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for Meniere's disease. 2. Entitlement to an increased evaluation for chronic frontal sinusitis, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from December 1954 to November 1956. This appeal arises from a June 1991 rating decision of the Department of Veterans Affairs (VA), San Juan, Puerto Rico, Regional Office (RO). In that decision, the RO denied the veteran's request to reopen his claim of entitlement to service connection for Meniere's disease and denied his claim of entitlement to an increased evaluation for service-connected chronic frontal sinusitis. From a review of the record on appeal, the Board of Veterans' Appeals (Board) observes that several issues appear to have been raised by the veteran. In a VA Form 21-4138 (Statement in Support of Claim) dated and received in February 1992, which has not been translated from Spanish to English, it appears that the veteran has raised several issues which must be addressed by the RO. Appropriate action should be undertaken by the RO to ensure that all issues raised on appeal have been properly addressed. REMAND The veteran and his representative assert that the veteran has not been afforded a VA examination of his service-connected sinusitis in many years. It is contended that the veteran has presented both medical evidence as well as testimony that this disorder has worsened, and it is requested that the case be remanded in order to accomplish such a current VA examination for rating purposes. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993). The United States Court of Veterans Appeals has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The Board has carefully reviewed the evidence of record, and finds the evidence to be inadequate for rating purposes. Based on this review, the Board has determined that the RO should ensure that the veteran is afforded a VA examination to determine the current nature, severity, and manifestations of his service-connected sinusitis. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The record on appeal also includes several statements from Ivan G. Clavell, M.D., from whom the veteran has apparently received treatment for rhinosinusitis for many years. Dr. Clavell appears to indicate that the veteran's rhinosinusitis is not only chronic, but unresponsive to treatment. However, none of the relevant treatment records of Dr. Clavell are of record. The Board has determined that the records of Dr. Clavell may be useful in evaluating the veteran's service-connected sinusitis. The Board also notes that the veteran has received recent treatment at the VA Medical Center in San Juan, Puerto Rico, and a November 1992 treatment record reflects that the veteran had requested to continue his medical treatment at the VA Satellite Clinic in Ponce. The RO should procure all pertinent treatment records and associate them with the records assembled for appellate review. A review of the material contained in the claims file shows that the record on appeal contains some documents that have not been translated into English including a VA Form 21-4138 (Statement in Support of Claim) dated and received in February 1992, as well as a statement from Nelson Fernandez-Blasini, M.D., dated in November 1990 and received in March 1992. The RO should ensure that all documents relevant to this appeal have been translated into English. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. After obtaining authorization from the veteran, the RO should obtain available records from Dr. Clavell relating to treatment for rhinosinusitis. 2. The RO should obtain any available treatment records from the San Juan VA Medical Center and the Ponce VA Satellite Clinic dated from November 1992 through the present. 3. All Spanish documents contained in the claims file which have not been translated into English by the RO, including a VA Form 21-4138 (Statement in Support of Claim) dated and received in February 1992, as well as the November 1990 statement from Dr. Fernandez-Blasini, which has been resubmitted in support of the current appeal, should be translated into English. 4. The RO should schedule the veteran for a VA Ear, Nose and Throat examination to assess the nature, severity, and manifestations of sinusitis. The examina- tion should be conducted in accordance with the guidelines provided in the Physician's Guide for Disability Evaluation Examinations. All indicated tests should be conducted and any additional indicated special examinations should be accomplished. The report should summarize all significant positive findings, with emphasis upon the limitation of activity, to include interference with employability, imposed by the disorder. The examiner should be requested to clearly delineate all symptomatology referable to the sinusitis from other disability, including Meniere's disease. The claims folder should be made available to the examiner prior to the examination. 5. Thereafter, the RO should readjudicate the veteran's claim of entitlement to an increased evaluation for sinusitis. The rating should reflect consideration of the applicability of 38 C.F.R. § 3.321(b)(1). The veteran and his representative should then be provided a supplemental statement of the case which includes a summary of additional evidence, citation of the provisions of 38 C.F.R. § 3.321(b)(1), and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. An appellate decision on the issue of whether new and material evidence has been presented to reopen the claim of entitlement to service connection for Meniere's disease is deferred pending completion of the developments requested above. GARY L. GICK 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 deter- mination. 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).