BVA9502109 DOCKET NO. 93-07 743 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to an increased (compensable) rating for otitis media with impaired hearing. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from December 1943 to August 1946. This matter comes before the Board of Veterans' Appeals (the Board) on a appeal from a rating determination by the Department of Veterans Affairs (VA) Regional Office (RO). In its March 1992 rating determination the RO confirmed a non-compensable schedular evaluation, which had been in effect for otitis media with impaired hearing since September 1949. REMAND Initially, the Board has found the appellant's claim well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based on the appellant's evidentiary assertion that his service connected disability is of compensable severity. Proscelle v. Derwinski, 2 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. On an application for compensation benefits completed in August 1946, the veteran referred to treatment during active duty to a "perforated rt. ear drum." In an August 1946 rating determination, the RO granted entitlement to service connection for "otitis media with impaired hearing," evaluated as 10 percent disabling under Diagnostic Code 6200. On the rating sheet below the notation that "otitis media with impaired hearing" was incurred in service, it was reported that the veteran's right ear hearing was 10/15 and his left ear hearing was 15/15. Whether the RO intended to limit the grant of service connection to right ear disabilities alone is not clear from the information recorded on the rating sheet. The September 1946 notification to the veteran only advised him that service connection had been granted for an "ear condition." In this regard, even if the rating action was deemed to have denied a grant of service connection for left ear impairments, there would be a due process problem with the adequacy of the notice of such a determination to permit the appellant to exercise his appellate rights. A physical examination was performed in July 1949, which noted a history of "running" in the right ear. The clinical evaluation disclosed that the eardrums were intact with no perforation or discharge and recorded that the appellant could hear a conversation at 20 feet in "either" ear. In a July 1949 rating action, the RO reduced the compensable evaluation to a non- compensable schedular evaluation effective September 1949, based on the fact that otitis media with impaired hearing was "not now shown." The July 1949 determination did not clearly indicate whether only unilateral or bilateral ear impairments were considered, and the notification letter provided the veteran did not shed light on this matter. In correspondence from the appellant received in August 1991, he commented "I want to re-open my claim for service connected disability for my ears." (emphasis added) This appears to reflect his belief that he was service connected for bilateral ear disability. Evidence submitted by the appellant in support of his claim included private records dated 1976 to 1981. These records indicate that he had tympanoplasties of both ears in 1976 an a reported history of recurrent ear infections, the last time having been ten years ago. Outpatient treatment records from a VA Medical Center covering the period from July to December 1991 are also of record. A VA ears, nose and throat examination was conducted in November 1991. The examiner evaluated both ears that time. The impression was probable mixed hearing loss of both (ears) conductive component secondary to perforation and multiple reconstructions, as well as, likely noise exposure induced neurosensory hearing loss. A rating determination was made on the appellant's reopened claim in March 1992. The issues before the RO were framed as including a claim for an increased rating for service-connected "otitis media with impaired hearing." The rating decision discussed facts pertaining to both ears. The rating decision observed that otitis media with impaired hearing was non-compensably rated as evaluated under Diagnostic Code 6200, effective September 1949. Again, the RO did not clearly define the scope of its decision, as it was again unclear whether the decision concerned both ears or only the right one. The notification sent to the veteran in March 1992 again discussed his rating for "otitis media with impaired hearing." The appellant filed a notice of disagreement and was provided a Statement of the Case (SOC) dated March 1993. The SOC noted that "entitlement to a compensable evaluation for service-connected otitis media with impaired hearing has been denied." In the "reasons for the decision" portion of the SOC, the RO explained that service connection was recognized for otitis media and hearing loss of the right ear; but that service connection was not established for any left ear infection or hearing loss since no hearing impairment, or other disability of the left ear, was shown in service or for many years after service. The SOC issued in March 1993 represents the first time that the RO explained the scope of the grant of service connection for ear impairments to the appellant. In light of the above discussion, there is clearly a question on the record as to the scope of the grant of service connection for ear disabilities and, assuming that the original or a subsequent rating action did not involve left ear impairment, the procedural status of the RO determination or determinations that limited the scope of the grant of service connection. Since the scope of the grant of service connection is a matter that materially affects the ratings or potential ratings that may be assigned, this matter must be clarified before the certified issue of entitlement to an increased rating for service connected ear impairment is addressed. Related to this matter is a contention raised by the veteran that he is actually seeking "reinstatement" of the compensable rating awarded post service. He is apparently of the belief that his original award was based upon hearing impairment, rather than the presence of suppuration. In addition to these considerations, the Board notes that the most recent evidence of record is a November 1991 VA examination and an October 1991 audiological evaluation. The Board is of the opinion that the duty to assist the appellant in this case includes conducting a thorough and contemporaneous medical examination, which takes into account the records of prior medical treatment, so that the evaluation of the appellant's claim will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Accordingly, the case is REMANDED to the RO for the following actions: 1. A VA ear nose and throat examination should be performed in order to determine the nature and severity of any disability of the right and left ears. All testing deemed necessary should be performed including an audiological evaluation of the right and left ears. The examiner is requested to provide an opinion, based upon the current examination and a review of the record, as to whether it is at least as likely as not that otitis media, a hearing loss of any type or any other impairment of the left ear was present in service or is causally related to the clearly service- connected impairment of the right ear, which includes otitis media and a hearing loss. The claims folder and a copy of this remand should be made available to the examiner in conjunction with the examination. 2. Following this examination, the RO must first address the matters discussed above as to the scope of the grant of service connection for ear impairments in effect prior to the current claim. If the RO does not conclude that rating actions prior to the current claim granted service connection for bilateral ear impairment, the RO should explain the rationale for that determination. Further, should the RO determine that service connection for impairment of the left ear was not granted in the past, the RO must address the procedural status of the denial of service connection for left ear impairments, and provide the veteran an explanation of the procedural status of this matter. The RO should also explain to the veteran the basis for the award of a compensable evaluation for an ear impairment in 1946, and the reason why that compensable award was terminated in 1949. Based upon these determinations, the RO should then address all rating issues now in appellate status. Thereafter, the case should be reviewed by the RO. If the benefits sought are not granted, a supplemental statement of the case should be issued to the appellant and his representative and they should be provided an opportunity to respond. Subsequently, the claims folder should be returned to the Board for further review, if necessary. By this action, the Board intimates no opinion legal or factual, as to the ultimate disposition warranted as to this case. RICHARD B. FRANK 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).