BVA9502721 DOCKET NO. 93-08 814 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss, including tinnitus. 2. Entitlement to an increased rating for an anxiety disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from July 1941 to September 1945. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from rating decisions of January and April 1992 of the Department of Veterans Affairs (VA) Regional Office (RO), in Indianapolis, Indiana, which denied the veteran's claim for an increased rating for an increased rating for an anxiety disorder, and refused to reopen the veteran's claim for a bilateral hearing condition. REMAND This World War II veteran has petitioned the Board to reverse the RO's previous decision that denied reopening his claim for service connection for a bilateral hearing condition. He maintains that the information he has provided at the RO hearing was both new and material, and that this information should prove his claim. He further contends that while the RO Hearing Officer determined that his anxiety disorder was at least mildly debilitating, he believes that it is more severe. The veteran therefore requests that the Board reverse the RO's decision concerning his hearing claim, and assign a higher disability rating for his psychiatric condition. In 1983 the veteran underwent a VA medical examination for the purposes of determining whether the veteran met the physical requirements for receiving a nonservice-connected pension. He did not formally apply for VA service-connected benefits for any type of hearing loss. As a part of that examination, a hearing test was conducted in which it was found that the veteran was suffering from severe bilateral sensorineural hearing loss. VA Form 10-2464, Summary Report of Examination for Loss of Organic Hearing Acuity, August 8, 1983. As a result of that examination, the RO determined that the veteran was entitled to basic pension benefits, and informed him of this decision. VA Form 21-6796, Rating Decision, November 2, 1983; Letter to the veteran, November 22, 1983. The RO did not however inform the veteran that it had made any determination concerning his hearing loss. In February 1987, the veteran requested service connection for his bilateral hearing loss. VA Form 21-4138, Statement in Support of Claim, February 20, 1987. By letter, in March 1987, the RO informed the veteran that he had been previously denied service connection for bilateral hearing loss, and that to reopen his claim for this disability, he would have to submit new and material evidence. Letter to the veteran, March 20, 1987. Despite this information, when the veteran submitted his VA Form 1-9, in October 1987, he maintained that he should receive VA benefits for his hearing condition. VA Form 1-9, Appeal to Board of Veterans Appeals, October 5, 1987. On the basis of the veteran's service and post-service medical records, it appears that the RO denied the veteran's petition on the merits the following November. VA Form 21-6796, Rating Decision, November 19, 1987. In denying his request, the RO wrote that the veteran's bilateral hearing loss was not shown in service, and was not diagnosed until thirty-eight years after his discharge. Although the RO made this determination concerning the veteran's hearing loss, the RO did not inform him of its decision. Instead the RO contacted, by letter, the veteran's congressman. Letter to Congressman A. Jacobs, Jr., December 15, 1987. The claims folder does not reveal whether a copy of this letter was forwarded to the veteran, or whether the elected representative notified the veteran of the RO's decision on his hearing loss. Nearly two years later, the veteran again brought up his hearing loss claim. The RO again denied his request for VA benefits. VA Form 21-6796, Rating Decision, September 25, 1989. Responding to that decision through his VA Form 1-9, the veteran reiterated his position and expanded his claim to include tinnitus. VA Form 1- 9, Appeal to the Board of Veterans Appeals, January 22, 1990. The veteran petitioned to "reopen" his claim in 1991, at which time the RO informed him that the evidence did not show defective hearing while in service. Letter to the veteran, April 1, 1992. The RO further informed the veteran that since he had not submitted new and material evidence, a change in the previous decisions by the RO was not warranted. The veteran then appealed that decision to Board. The Board notes that both the statement of the case and the supplemental statement of the case reflect only the requirements regarding "new and material evidence". Yet, in reviewing the claims folder, we find that the veteran has not been provided the laws and regulations applicable to his claim to entitlement to service connection, which should include the regulations relating to the continuity of symptoms and treatment, and showing chronicity of a disorder during service. Consequently, the veteran has not been informed of the type of evidence he must submit to prevail with his claim for VA service-connected benefits. In other words, he has not been afforded adequate due process protection. The Board finds that the veteran's claim with respect to his bilateral hearing loss is to be characterized as a claim for service connection , rather than as a request to reopen a claim on the basis of the submission of new and material evidence. Consequently, the claim must be considered on a de novo basis, and not as one involving the submission of new and material evidence. We find that the lack of notice regarding the proper procedural status of his claim, combined with the lack of notice regarding the applicable laws and regulations in the adjudication of the claim, constitutes a violation of the veteran's due process rights in his appeal of the claim at issue. Accordingly, we find that these due process deficiencies must be corrected, and this case must be remanded for those corrections. We also note however that the veteran's claim for bilateral hearing loss may not be well-grounded. In Murphy v. Derwinski, 1 Vet.App. 78 (1990), the Court of Veterans Appeals (Court) has stated that a well-grounded claim is one that is plausible and meritorious. This means that the evidence presented should reveal that there was an injury or disease while in service and that there is currently a disability involving that same injury or disease, i.e., that there is some medical link between the current disability and the injury or disease in service. If this is not present, then the RO, and, if appealed, the Board, has a duty to find that the claim is not well-grounded and dismiss it. When a claim is found not well-grounded and is dismissed, the veteran is, in effect, put on notice that the claim is defective. However, he is not penalized in that the Board makes no denial of his claim. The veteran may submit additional evidence that would make his claim plausible and, because there is no final denial by the Board on record, he is not required to reopen the claim. The Court is concerned that VA not expend time and money in processing implausible claims. See Grivois v. Brown, 6 Vet.App. 136 (1994). Thus, during the remand process, the RO should also determine whether the veteran has submitted a well-grounded claim concerning the issue of service connection for bilateral hearing loss, including tinnitus. The Board also recognizes that the veteran has requested that he be awarded an increased rating for his psychiatric disability. Recently, the Court of Veterans Appeals (the Court), in Massey v. Brown, No. 93-135 (U.S. Vet. App. Dec. 6, 1994), and Colvin v. Derwinski, 1 Vet.App. 171 (1991), has stated that the Board should not relate symptoms suffered by the veteran to social and industrial adaptability criteria listed in 38 C.F.R. Part 4 (1994). If there is a question, the Board has a duty to remand the case in order for additional development of clinical evidence. On the basis of these directives, it is our opinion that further information is desirable before we make a final decision with respect to the veteran's psychiatric condition. Thus, because the case must be remanded for due process reasons, we believe it also prudent to obtain further information concerning the veteran's current mental status. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should schedule the veteran for a comprehensive VA psychiatric examination to determine the scope and extent of the veteran's anxiety disorder. This study must be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The examiner must conduct all indicated tests, including appropriate psychological studies with applicable subscales. The RO must make the claims folder available to the examiner for review prior to the requested study. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed., 1994), and explain what the assigned score represents. The examiner must provide a complete rationale for any opinion expressed. 2. In the supplemental statement of the case issued in conjunction with this REMAND, the RO should restate the issues as they appear on the cover page of this decision. Moreover, in the supplemental statement of the case to be issued, the RO should explain that the prior statement of the case, and supplemental statement of the case, previously issued in the appeal, incorrectly characterized. The supplemental statement of the case should clearly show that the bilateral hearing loss issue is to be considered on a de novo basis. Also, all of the applicable laws and regulations regarding the disposition of service connection cases should be set forth, and the case should be developed in accordance therewith. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be carried out. Following completion of the requested development, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the regional office. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical evidence. BETTINA S. CALLAWAY 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).