BVA9505569 DOCKET NO. 93-06 995 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a throat disability. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for residuals of radiation exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. H. Mathis, Counsel REMAND The veteran had active service from February 1943 to February 1946, and from June 1946 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Two service comrades have reported that they and the veteran were exposed to severe noise exposure, especially one incident, during combat in World War II. A private physician, who has reported treating the veteran since service discharge, notes that, although audiometric testing has not been accomplished, the veteran has periodically complained of ear pain and discomfort and poor hearing in the right ear; that the veteran's hearing seems grossly defective; and that an audiogram would be of value to determine the source of his discomfort and impaired hearing. An examination prior to a decision has also been requested by the veteran. It is the judgment of the Board that a VA special examination regarding hearing loss should be completed prior to a decision on the merits of the claim. Also, the service medical records reflect that the veteran complained of a sore throat during service. The representative asserts that the veteran should be afforded an examination regarding his claim. Inasmuch as the case has to be remanded to the RO regarding the claim for hearing loss, it is reasonable that the veteran also be afforded an examination regarding the claim that he has throat disability related to service. Further, although the representative has noted that the veteran has not divulged the nature of the disability which he has as a residual of radiation exposure, even though he has been requested to do so on two occasions by the RO, the representative asserts that there is evidence in the file of lung disability for which service connection is warranted. The Board concludes that there should be clarification of this matter by the RO prior to further action on the claim. Recently, the United States Court of Appeals for the Federal Circuit determined that section 5 of the Veterans' Dioxin and Radiation-Exposure Compensation Standards Act of 1984, Pub. L. No. 98-542, 98 Stat. 2725, 2727-29, did not preclude, or authorize VA to preclude, a veteran from proving that he has a disability as a result of exposure to ionizing radiation under the provisions of 38 U.S.C.A. § 1110 (West 1991) and 38 C.F.R. § 3.303(d) (1993), despite the fact that the claimed disability is not a potentially radiogenic disease under 38 C.F.R. § 3.311b (now § 3.311). Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), reversing in part Combee v. Principi, 4 Vet.App. 78 (1993). In such cases, a veteran must be given an opportunity to prove that exposure to ionizing radiation during service actually caused his claimed disability and that service connection is therefore warranted under 38 U.S.C.A. §§ 1110, 1131, and 38 C.F.R. § 3.303(d). In view of the foregoing, the Board concludes that further action, as specified below, would be helpful prior to decisions on the merits of the claims. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he clarify the issue of service connection for residuals of radiation exposure by reporting what disability he claims is a residual of radiation exposure, including specifically whether he is claiming service connection for lung disability. He should be requested to respond on this matter, even if the response is negative. If medical or other competent evidence to show that the veteran's claim is plausible is received, the RO should undertake all indicated development to readjudicate the veteran's claim of entitlement to service connection for residuals of radiation exposure in light of the Federal Circuit's decision in Combee v. Brown, supra. 2. The veteran should be requested to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him at any time since service discharge for disabilities for which he is claiming service connection. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran, which have not been previously secured, and associate them with the claims folder. 3. Then, the veteran should be afforded a VA examination by a board certified otolaryngologist, if available, to determine the nature and extent of any hearing loss shown. All indicated studies, including audiometric testing, should be completed. The examiner is requested to review the claims folder and provide an opinion, with complete rationale, as to whether it is at least as likely as not that any hearing loss shown had its etiology during service. In addition, the examiner should report the nature and extent of any throat disability present, review the claims folder and provide an opinion, with complete rationale, as to whether it is at least as likely as not that any throat disability shown had its etiology during service. It is imperative that a copy of this Remand and the claims folder be provided to the examiner for review prior to examination. 4. The RO should undertake any other indicated development, readjudicate the issues currently certified on appeal and adjudicate any additional claims being pursued by the veteran. If the benefits sought on appeal are not granted to the appellant's satisfaction, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. The appellant need take no action until otherwise notified. F. JUDGE FLOWERS 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).