BVA9502182 DOCKET NO. 93-09 439 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for status postoperative carcinoma of the left ear. 2. Entitlement to an increased (compensable) evaluation for bilateral otitis externa. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD G. P. Hanson, Counsel INTRODUCTION The veteran served on active duty from January 1942 to November 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 1991 issued by the Reno, Nevada, Regional Office (hereinafter RO) denying the veteran entitlement to the benefits at issue. REMAND The threshold question is whether the veteran has met his burden of submitting evidence sufficient to justify a belief that his claims are well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). If his claims are not well-grounded, the Board does not have jurisdiction over the question of whether the benefits sought on appeal are warranted. Boeck v. Brown, 6 Vet.App. 14 (1993). In this context, the Board finds that the veteran's evidentiary assertions of symptoms a lay party is competent to report, viewed in conjunction with the medical evidence in file, are sufficient to establish plausible claims and ones that are well-grounded. Proscelle v. Derwinski, 2 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). A preliminary review of the record and arguments advanced by the veteran, particularly at a hearing on appeal held before a hearing officer at the RO in January 1992, indicates that one of the fundamental questions presented in this case is the etiology of his status postoperative carcinoma of the left ear. The veteran contends that such a disorder had its onset in service due to excessive exposure to the sun while he was on active duty in the Pacific Theater. In this respect, his separation qualification record reflects that he was a member of a tank heavy maintenance company overseas in Australia, New Guinea and the Philippines; that while so occupied he taught the Australian Army about maintenance of Army wheel and tracked vehicles, and that he was so engaged for an unspecified period of time. The veteran contends in the alternative that he developed status postoperative carcinoma of the left ear as a consequence of his service-connected bilateral otitis externa. In these respects, a Department of Veterans Affairs (VA) staff physician opined in June 1992 that the veteran's actinic damage with a history of squamous cell carcinoma of the left ear had its etiology in exposure to sun while in the military and also from similar exposure to the sun before and after his military experience. The opinion did not qualify the relative probability as to whether it was at least as likely as not that the sun exposure in service was the proximate cause of the malignancy. In reference to service-connected bilateral otitis externa, the veteran asserts that, following his separation from service in 1945, he became an outpatient at Sawtell (Sawtelle) Veterans Hospital in Los Angeles, California; that in 1952 he was diagnosed as having "jungle rot" of the left ear canal; that an outpatient doctor at Sawtell had him see Dr. Barr, an Ear, Nose and Throat Specialist, located in North Hollywood, California, on Ventura Boulevard; that the year in question was 1952; and that after several treatments Dr. Barr got the condition under control. He then relates that he was seen further at Sawtell for unspecified problems and was later treated at the Long Beach Outpatient Veterans Hospital. The RO mounted several efforts to obtain the records from the Sawtelle VA facility. The material now of record includes what apparently is a copy of a file card containing the appellant's name and social security number which appears to indicate to the Board that the veteran received treatment prior to "12/24/79." The notations on an associated VA Form 00-3770 (no date), however, indicate either that the records were retired and further information was needed (there is reference to Box, Location and Accession Numbers, but it is unclear who should provide them), or that a search for the old records was conducted but proved fruitless (the word "missing" is written on the document). This matter needs to be clarified. VA has a duty to assist the veteran in the development of facts pertinent to a well-grounded claim, as mandated by 38 U.S.C.A. § 5107(a). In addition, in Schafrath v. Derwinski, the United States Court of Veterans Appeals held that in a claim for increased disability compensation benefits, a complete history is required. In order to satisfy that duty and to afford him every consideration, the Board finds that further development of the evidence is indicated. Thus, the case is REMANDED for the following actions: 1. While the current record indicates that the appellant has provided information on his post service treatment for ear disorders, the opportunity should be taken on Remand to assure that this information is complete. Therefore, the RO should request that the veteran identify to the best of his ability the names and addresses of all doctors he was treated by following his separation from active duty and indicate the exact dates he was treated by such individuals. In this respect, he should furnish the RO with all the necessary authorizations for the release of medical information from these treating physicians. Thereafter, the RO should make every effort to obtain copies of related medical reports from these sources, if such copies are not already of record, to include any reports of performed diagnostic studies. 2. In light of the above discussion concerning the records of treatment at the Sawtelle VA facility, the RO is respectfully requested to take appropriate action to clarify on the record the status of the search for treatment records dated prior to "12/24/79." If, in fact, no records can be located it should be so indicated in an unambiguous manner. 3. Upon completion of the above actions, the RO should arrange for the veteran to be examined by a board of specialists in dermatological medicine, who have not previously examined or treated the appellant, if available, in order to obtain opinions as to whether the veteran's current status postoperative carcinoma of the left ear had its etiology in service. The claims file and a copy of this REMAND should be made available for review by the examiners in conjunction with the examination and all indicated testing should be performed. The physicians should indicate whether it is at least as likely as not that there is a direct proximal relationship between status postoperative carcinoma of the left ear, first clinically demonstrated post service in 1987, and alleged excessive exposure to the sun while the veteran was on active duty in the Pacific Theater as opposed to exposure to the sun before or after service. In this regard, the opinions should address whether the alleged excessive exposure to the sun while on active duty was only an aggravating factor, such that the greater probability is that cancerous growths developed independently of any sun exposure in the service. Moreover, opinions should be furnished as to whether it is at least as likely as not that there is a direct proximal relationship between the veteran's status postoperative carcinoma of the left ear and his service-connected bilateral otitis externa for which service connection has been granted. The examining physicians should also indicate whether the veteran currently has otitis externa and its severity. The examination and opinions in question should not be provided until after a review of the entire record, including the veteran's service medical records, and a copy of this REMAND. 4. Thereafter, the RO should review the reports of examinations and ensure that they are conformity with the request made in this REMAND. To the extent that they are not, any deficient examination report should be returned to the examining physician for appropriate action. Upon completion of the foregoing development, the RO should again review the veteran's claim. Should the veteran remain dissatisfied with any aspect of the RO's decision, both he and his representative should be issued a supplemental statement of the case and given the appropriate period of time in which to respond. Further, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. No action is required on the part of the veteran or his representative until further notice is received. By this action, the Board intimates no opinion, legal or factual, as to the ultimate determination warranted. 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).