BVA9504303 DOCKET NO. 93-08 733 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for an ear disorder. 2. Entitlement to service connection for defective hearing. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from July 1980 to July 1983 and December 1990 to September 1991. Although a March 1985 rating decision by the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO), which denied service connection for an ear disorder, became final when the appellant did not timely appeal that decision, the Board finds that the current claim of entitlement to service connection for an ear disorder constitutes a new claim because it is based upon a second period of active military service, which occurred subsequent to when the March 1985 rating decision became final. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision of the RO, which determined that the appellant had not submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for an ear disorder. The April 1992 rating decision also denied a claim of entitlement to service connection for defective hearing. REMAND In an October 1991 statement, the appellant claimed that he had incurred an ear infection and hearing loss while on active duty during Operation Desert Shield/Storm. He reported that he had received medical treatment for an ear infection and hearing loss at Camp Santiago-Salinas, Puerto Rico, in September 1991, as well as the Rio Piedras, VA Hospital, on September 27, 1991, and specifically requested that the VA obtain those records. The appellant's representative noted in a March 1993 statement that the RO had failed to request and secure copies of the aforementioned medical treatment records. The representative also stated that the appellant's September 1991 service separation medical examination disclosed mild to moderate, bilateral, hearing loss, and that a March 1992 private medical record revealed chronic otitis of the left ear. A review of the pertinent medical evidence in the claims file is in order. At a May 1983 service medical examination, conducted in conjunction with his first separation from service, the appellant complained of ear trouble affecting his right ear. The medical examination report noted that the appellant had decreased hearing in his right ear. A December 1983 VA examination of the appellant's ears showed that the tympanic membranes and external canals were "negative." Audiological evaluations, performed in January and October 1984, showed that hearing was within normal limits, bilaterally. Copies of service medical examinations, while the appellant was in the Reserves, dated in December 1985 and October 1989, showed that clinical evaluations of the appellant's ears were normal, and no defects or diagnoses were listed. The record reveals that the appellant was on active duty during Operation Desert Shield/Storm, and that he underwent a service separation medical examination in September 1991. A copy of the September 1991 service medical examination indicated that clinical evaluation of the appellant's ears was normal. Audiometric testing performed at that time revealed decibel losses outside the normal range for almost all frequencies tested in both ears, and the examination report listed a diagnosis of "bilateral hearing loss, mild to moderate." A copy of a November 1991 VA medical record showed that the appellant had been treated for an ear disorder. An illegible VA "ENT" examination, conducted in December 1991, appears to make reference to "otitis (mild)," which may indicate the presence of an ear disorder. A January 1992 VA audiological evaluation of the appellant's hearing disclosed that pure tone air conduction thresholds were within normal limits from 500 Hz to 4000 Hz, bilaterally. A March 1992 private medical record revealed that the appellant had been treated "partially successful" with ear drops for a diagnosis of recurrent otitis affecting his left ear. After review of the claims file, the Board notes that the RO has not responded to the appellant's request to obtain pertinent medical treatment records from Camp Santiago-Salinas, Puerto Rico and the Rio Piedras, VA Hospital. Furthermore, the audiometric findings from the September 1991 service separation medical examination, which reported a diagnosis of bilateral hearing loss, show a great disparity in comparison with the findings from the VA audiological evaluation conducted only four months later in January 1991, which indicated that bilateral hearing was within normal limits. We believe that additional development is necessary to reconcile the conflicting audiometric findings. VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that the VA's duty to assist the appellant in obtaining and developing available facts and evidence to support his claims includes obtaining previous treatment records and adequate VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90 (1990). Because our review of the claims file indicates that the additional development described above is required before an appellate decision can be rendered, this case is REMANDED to the RO for the following actions: 1. The RO should obtain copies of the medical treatment records from Camp Santiago-Salinas, Puerto Rico, dated in September 1991, as well as the medical treatment records from Rio Piedras, VA Hospital, dated on September 27, 1991. After securing the necessary releases, the RO should request these records and associate them with the claims file. 2. The RO should request that the VA doctor who performed an "ENT" examination on the appellant and prepared a medical record, dated on December 9, 1991, provide the RO with a legible copy of the medical record. 3. The appellant should be afforded an examination by an ear, nose and throat specialist, in accordance with the VA's Physician's Guide for Disability Evaluation Examinations (1985), in order to allow the RO to ascertain the nature and severity of any ear disorder affecting the appellant. All indicated special studies should be conducted if not medically contraindicated. The examiner should be requested to express an opinion as to the etiology of any ear disorder present, particularly as to whether it is proximately due to or the result of military service. The ear, nose and throat evaluation should include an audiometric examination to ascertain the nature and severity of any hearing impairment affecting the appellant. All indicated special studies should be conducted if not medically contraindicated. The examiner should be requested to express an opinion as to the etiology and type of any hearing loss present (conductive, sensorineural, or central), particularly as to whether it is proximately due to or the result of military service. The claims folder and a copy of the REMAND should be made available to the examiner for review prior to the examination. 4. The RO should review the examination reports to determine if they are adequate for rating purposes and in compliance with this remand. If any examination report is not adequate, it should be returned to the examiner for supplemental action. 5. The RO should consider the claim of entitlement to service connection for an ear disorder as to the merits of the claim. After the above requested actions have been completed, the RO should review the appellant's claims with regard to the additional evidence obtained. If any of the benefits sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional medical evidence and to ensure that the appellant receives his procedural due process rights. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. 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 so assigned. 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) (1994).