BVA9504964 DOCKET NO. 93-13 872 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for an ear disorder, to include bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lori R. Bucci, Associate Counsel REMAND The veteran served on active duty from June 1940 to June 1945. This appeal arises from an April 1987 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire which denied service connection for bilateral hearing loss (claimed as artillery ears). The veteran was informed that he was not service connected for bilateral hearing loss in a December 1987 letter. Later in December 1987, the veteran wrote to the RO stating that he was "service connected" for his hearing loss. That letter should have been construed as a notice of disagreement, and a statement of the case should have been issued. Accordingly, the posture in which this case was certified, i.e., whether new and material evidence had been presented, was erroneous, and the claim should have been presented for de novo review. Since the RO’s April 1987 decision the veteran has also raised the issue of entitlement to service connection for ear drum scars. Moreover, he now contends in part that if a hearing loss was not incurred while on active duty, then a hearing loss is a result of the ear drum scars found at his June 1945 separation examination. As the RO has yet to adjudicate the issue of entitlement to service connection for ear drum scars, and as such a claim is, under the circumstances presented here, inextricably intertwined with the claim of entitlement to service connection for a hearing loss, further development is warranted. In claiming service connection the Board observes that the veteran has asserted that he knows a comrade who witnessed a May 1943 incident at which the veteran’s ears/hearing were purportedly damaged by German artillery bombardment. A review of the claims folder, however, does not show that any attempt has been made to contact this service comrade. Finally, the veteran indicated in a March 1989 VA Form 1-9 that his bilateral hearing loss had been treated by J. Paul Dye, M.D., a private physician, and in February 1948 at the VA clinic in Manchester, New Hampshire. Neither the medical records from Doctor Dye nor the medical records from the VA clinic are of record. Accordingly, further development is warranted. Therefore, because this case should have been handled on a de novo basis by the RO, because all potential sources of medical records have not been contacted, and as the examiner at a VA July 1992 audio examination was not asked to discuss the relationship, if any, between the veteran's current bilateral hearing loss and any service related scar on his eardrums, further development is warranted. Accordingly, this case is REMANDED for the following action: 1. The RO should ask the veteran to provide the names and addresses of all medical care providers who have provided treatment for his bilateral hearing loss since July 1992. After securing any necessary releases, the RO should obtain these records. 2. The RO should ask the veteran to provide the dates of treatment pertaining to his hearing loss and the complete address of his private physician, J. Paul Dye, M.D. After securing any necessary releases, the RO should obtain these records, including specifically any records pertaining to any care for hearing loss provided in February 1948 by the VA clinic in Manchester, New Hampshire. 3. The RO should request that the veteran provide the full name and address of any comrade who witnessed his alleged acoustic trauma. The RO should then attempt to obtain a "buddy" statement from any identified person. 4. After completion of the foregoing, the veteran should be afforded a VA examination by an otolaryngologist. This examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. The claims folder, after all additional medical records have been obtained and incorporated, must be made available to the examiner prior to the requested examination. The examiner is then requested to determine if the veteran has a scar on his eardrums, and to express an opinion whether it is at least as likely as not that any scar found on the eardrums is related to the scars noted at separation. Finally, the examiner is requested to opine whether the bilateral sensorineural hearing loss found at the July 1992 audio examination is at least as likely as not etiologically related to any scars associated with active service. 5. The RO should then review the examination report and all of the foregoing instructions. If the requested action has not been carried out in full, appropriate remedial action should be undertaken. The RO should then review the evidence and determine whether the veteran's claim for service connection for an ear disorder, to include bilateral hearing loss, may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case and an opportunity to respond thereto. The case should then be returned to the Board of Veterans' Appeals for further appellate consideration. The purposes of the REMAND are to assist the veteran in the development of his claim and to procure clarifying medical data. The Board intimates no opinion, legal or factual, as to the ultimate disposition of the veteran's appeal. No action is required of the appellant until he receives further notice. DEREK R. BROWN 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).