BVA9505954 DOCKET NO. 93-10 833 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD K. J. Alibrando, Associate Counsel INTRODUCTION The veteran served on active duty from May 1941 to December 1945. This appeal arises from a March 1993 rating decision in which the RO denied service connection for bilateral hearing loss. In his February 1993 claim, the veteran requested that his claim for entitlement to service connection for tinnitus be reopened. As that issue has not been properly developed on appeal and is not inextricably intertwined with the issue before us, it is referred to the RO for appropriate action. REMAND The veteran contends bilateral hearing loss was incurred in active service. He asserts that he was exposed to loud field artillery during World War II which caused his hearing loss, and he argues that VA physicians have told him that the hearing loss is the result of the artillery fire. A December 1992 VA audiological clinic record shows a diagnosis of high frequency sensorineural hearing loss and refers to an audiogram. A copy of that hearing test is not included in the claims folder. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). The U.S. Court of Veterans Appeals has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining treatment records to which the veteran has referred. Littke v. Derwinski, 1 Vet.App. 90 (1990). The RO should obtain a copy of the December 1992 audiogram and any current treatment records not already contained in the claims folder. The veteran contends that his hearing loss was caused by noise exposure in service. However, he has not been afforded a VA examination which includes an opinion as to the relationship between his current hearing loss and his active serve. Fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121 (1991). In addition, the Court has held that when test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet.App. 155, 160 (1993). The RO should afford the veteran a VA examination which includes an opinion regarding the relationship between the veteran's hearing loss and his active service. The Board notes that the veteran filed a claim for entitlement to service connection for hearing loss in August 1979. He submitted a statement from John R. Rainey, U.S. Public Health Service Hospital, dated in August 1979, which included a diagnosis of high frequency hearing loss with secondary tinnitus. By rating action of August 1979, the RO denied the veteran's claims for hearing loss and tinnitus. The veteran was informed of that decision by letter dated in August 1979, however, he did not file a timely appeal and that action became final. That final decision is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). In order to reopen his claim, the veteran must present or secure new and material evidence with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In February 1993, the veteran submitted his claim for entitlement to service connection for hearing loss. By rating action of March 1993, the RO denied entitlement to service connection for hearing loss. The RO failed to adjudicate the issue of whether new and material evidence had been submitted to reopen the claim for hearing loss. The April 1993 statement of the case does not contain the laws and regulations pertaining to reopened claims. The VA has a duty to acknowledge and consider all regulations which are potentially applicable to the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The RO should adjudicate the issue of whether new and material evidence has been submitted to reopen the veteran's claim for service connection and, thereafter, furnish the veteran a supplemental statement of the case citing the appropriate law and regulations considered in reaching their decision. Under the circumstances of this case, we find that additional development is required. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request him to furnish the names and addresses of all health care providers from whom he has received treatment for hearing loss and tinnitus from February 1993 to the present time. Where appropriate, consent forms for the release to the VA of any private medical records should be obtained from the veteran. Thereafter, the RO should obtain legible copies of all identified treatment records and associate them with the claims folder. 2. The RO should obtain a copy of the audiogram referred to in the December 1992 VA audiological clinic record and associate it with the claims folder. 3. After the above mentioned records have been obtained, the veteran should be afforded a special VA audiological examination to determine the nature and extent of his hearing loss. Such tests as the examiner deems necessary should be performed. The claims folder must be made available to the examiner prior to the examination so that he/she may review pertinent aspects of the veteran's medical history and render an opinion as to whether it is at least as likely as not that any current hearing loss is the result of noise exposure during service. 4. 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 examinations does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 5. After completion of the above, the RO should adjudicate the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hearing loss. The RO should issue a supplemental statement of the case which sets forth all applicable laws and regulations considered in the determination of the veteran's claim. The veteran should be given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. C.W. SYMANSKI 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).