Citation Nr: 0002900 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-17 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to an initial compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from July 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. That rating decision granted service connection for hearing loss of the left ear and assigned a noncompensable (0%) disability rating. The Board notes that it has characterized the issue as one of entitlement to compensable rating for left ear hearing loss in order to comply with the recent opinion by the United States Court of Appeals for Veterans Affairs (Court), in Fenderson v. West, 12 Vet. App. 119 (1999). In that case, the Court held, in pertinent part, that the RO had never properly provided the appellant with a statement of the case (SOC) concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson. 12 Vet. App. 132 (1999), emphasis in the original. The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for issuance of a SOC. Id. As in Fenderson, the veteran voiced disagreement with the original rating award for his hearing loss disorder. The RO has issued a SOC providing the appellant with the appropriate applicable law and regulations and an adequate discussion of the basis for the RO's assignment of the initial disability evaluation for his service connected left ear hearing loss disability. In addition, the appellant's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the appellant in recharacterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned. See Bernard v. Brown, 4 Vet. App. 384 (1993). In October 1999, a hearing was held before Bettina S. Callaway, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). At the October 1999 hearing the veteran raised the issue of entitlement to service connection for right ear hearing loss. He also submitted additional medical evidence related to his hearing loss disability. The Board finds the issue of entitlement to service connection for a right ear hearing loss to be inextricably intertwined with the issue of entitlement to a compensable disability rating for the veteran's service connected left ear hearing loss. As such, the case must be remanded. REMAND The VA has a duty to assist the veteran once his claims are found to be well-grounded. 38 U.S.C.A. § 5107(a)(West 1991). A well-grounded claim is one which is meritorious on its own or capable of substantiation. It need not be conclusive, but only plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the present case the veteran's claims are well grounded, but the duty to assist him in its development have not yet been fulfilled. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). At the October 1999 hearing the veteran raised the issues of entitlement to service connection for right ear hearing loss and entitlement to service connection for bilateral tinnitus. He has submitted medical evidence to support these claims. The RO has not adjudicated these issues. However, these issues are inextricably intertwined with the issue on appeal, namely entitlement to an initial compensable rating for left ear hearing loss. As such, the Board must give the RO the chance to adjudicate the issues involving service connection. The veteran also asserts that he was treated for hearing loss at a VA medical facility in 1969 or 1970. The RO should attempt to obtain these records. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and ask him at which VA medical facility he was treated and/or examined for hearing loss in 1969 or 1970. Subsequently, the RO should attempt to retrieve those VA medical records. 2. The RO should review the record, including the service medical records, and adjudicate the issues of entitlement to service connection for right ear hearing loss and bilateral tinnitus. After those decisions are rendered, the RO should re-adjudicate the issue of entitlement to an initial compensable rating for the veteran's hearing loss. If the RO finds that additional medical evidence is needed to adjudicate the veteran's claims, then the appropriate VA examination should be ordered. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. The Board intimates no opinion as to the ultimate outcome of this case. Further adjudication of the questions presented will be postponed until the remand action is completed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).