BVA9507438 DOCKET NO. 93-14 105 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for defective vision. 2. Entitlement to service connection for the residuals of hepatitis. 3. Entitlement to service connection for a back disability. 4. Entitlement to an increased (compensable) rating for hearing loss. 5. Entitlement to an increased (compensable) rating for a right and left knee disability. 6. Entitlement to an increased (compensable) rating for a foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active duty from October 1966 to July 1970, and from November 1972 to August 1980. Initially, the Board of Veterans' Appeals (Board) notes that in November 1989 the veteran submitted a claim for entitlement to service connection for a hip disability which he believes is secondary to his service-connected disabilities of the lower extremities. This issue has not been addressed, and is referred to the regional office (RO) for proper development. In addition, the representative has raised the issue of clear and unmistakable error in the March 1990 rating decision in regards to the evaluation of the veteran's bilateral knee disorders. This issue has not been addressed by the RO, and is referred for proper development. REMAND The veteran contends that he developed defective vision and a back disability during active service. He further avers that he was treated for hepatitis and continues to have residual disability from this disease. He states that he sustained an injury to his head, and developed defective vision shortly afterwards. He argues that he was treated for infectious hepatitis during service, and has permanent liver damage. Finally, he avers that he injured his back during physical therapy following knee surgery. The veteran further contends that his knee disabilities, foot disability, and defective vision are productive of a greater degree of disability than is reflected by the noncompensable evaluations currently in effect. He argues that his knees are productive of pain, and will give way when walking down stairs. He states that his foot disability is also painful, and that the disorder surgically corrected in service is beginning to return. Finally, the veteran argues that his hearing has become worse during the course of the past two years, and that he has difficulty understanding normal conversation at certain frequencies. The Board notes that additional evidence pertaining to the veteran's claim was received in February 1995. While some of this evidence is contained elsewhere in the claims folder or is irrelevant to the veteran's current claim, a November 1994 physical examination and a December 1994 audiological evaluation are included. This evidence has not been considered by the RO, and the veteran has not submitted a waiver of consideration by the RO. 38 C.F.R. § 20.1304 (c) provides that any pertinent evidence accepted at the Board without the benefit of RO consideration must be accompanied by a written waiver. The Board believes that consideration of this evidence by the RO is necessary in order to afford the veteran due process of law. A review of the claims folder indicates that the service medical records for the veteran's period of service from October 1966 to July 1970 have not been obtained. While some service medical records for this period of service have been obtained directly from the veteran and are of record, it is not clear whether they are complete. The Board believes that the records for the period in question should be obtained and associated with the claims folder. The Department of Veterans Affairs (VA) has the duty to assist the veteran in the development of all evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). To assist the veteran in the development of his claim and to ensure full compliance with due process requirements, the case is remanded to the RO for the following development: 1. The RO should contact the service department to obtain the veteran's service medical records for the period of service between October 1966 to July 1970. These records should be associated with the claims folder. 2. The RO should ask the veteran to provide the names and addresses of all sources of treatment for his claimed disabilities. After obtaining the proper permission from the veteran, the RO should obtain all recent treatment records not previously of record and attach them to the claims folder. The records from the VA facility in Oakland, Pennsylvania, should be included. 3. The veteran should be afforded an orthopedic examination to determine the current status of his service-connected bilateral knee and right foot disabilities. All indicated tests and studies should be accomplished. The veteran's claims folder should be made available to the examiner for study in this case. 4. The RO should review the veteran's claims on the basis of all the additional evidence, including the evidence received at the Board in February 1995. If the evaluations for the veteran's disabilities each remain noncompensable, the RO should consider the provisions of 38 C.F.R. § 3.324. If the decision remains unfavorable to the veteran, both he and his representative should be issued an appropriate supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. V. L. JORDAN 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) (1994).