BVA9503107 DOCKET NO. 93-14 294 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel INTRODUCTION The veteran served on active duty from September 1967 to September 1969. This appeal arises from a July 1991 rating decision of the Department of Veterans Affairs (VA), Fort Harrison, Montana, Regional Office (RO). In that decision, the RO denied the veteran's request to reopen his claim of entitlement to service connection for bilateral hearing loss. The Board of Veterans' Appeals (Board) notes that the veteran was scheduled for a personal hearing to be held before a member of the Board at the RO on June 1993. However, a notation in the record on appeal indicates that the veteran failed to report for the scheduled hearing. REMAND This matter came before the Board on appeal from a RO determination that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss which had been denied by the RO in a previous May 1970 unappealed rating decision. In support of the reopening of that claim, the veteran has submitted additional service medical records which had not previously been considered by the RO, and which include an Ear, Nose and Throat (ENT) clinic referral and consultation report from the U.S. Army Hospital in Ft. MacArthur, California, dated in September 1969. The report was apparently requested in conjunction with the veteran's separation from service, and appears to show some positive findings relating to the left ear. The Board observes that the evidence of record which was considered by the RO in May 1970 included available service medical records but did not include the above referenced service medical records. A VA Form 07-3101 (Request for Information) dated in March 1970 reflects that at the time the request was made, the veteran's health record did not contain a record of the alleged treatment from the U.S. Army Hospital at Ft. MacArthur, California, although an unsuccessful request for those records was later indicated to have been made directly to that facility. Moreover, the record does not contain a report of examination conducted prior to the veteran's separation. The recent service medical records submitted by the veteran appear to indicate that additional service medical records may be available. The VA has a duty to assist the veteran in the development of facts pertinent to his claim under 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (Court) has held that fulfillment of the VA's duty to assist the veteran includes the procurement and consideration of any relevant medical records. Ferraro v. Derwinski, 1 Vet.App. 326, 334 (1991). The RO should determine if the veteran's complete service medical records are currently of record. The Court has also held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The veteran has requested that he be afforded a VA examination to determine the nature and extent of his hearing loss. In light of the additional service medical records submitted recently by the veteran along with the medical records previously considered, including a report of VA examination conducted in April 1970, in which the examiner opined that the results of the audiogram suggested acoustic trauma of the left ear, the Board has determined that the veteran should be afforded a complete VA audiological examination. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should request from the custodian of the veteran's service medical records all available service medical records, including the report of examination conducted prior to separation, which are not currently associated with the record on appeal. 2. The veteran should be requested to submit all service medical records in his possession. Those records should be associated with the record on appeal. 3. The veteran should be afforded a complete VA audiological examination to determine the nature and extent of the veteran's bilateral hearing loss. The examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated diagnostic tests and procedures should be accomplished. The report should summarize all significant positive findings. The examiner is requested to describe all symptomatology related to each ear separately, and the report should include a medical opinion based on a review of all of the pertinent medical evidence of record as to the degree of probability that any hearing loss currently shown is the result of acoustic trauma incident to the veteran's military service. The examiner should express an opinion as to the medical significance of the audiological findings reported in service in September 1969 and those reported on VA examination in April 1970. The claims folder should be made available to the examiner prior to the examination. 4. The RO should readjudicate the veteran's claim of entitlement to service connection for bilateral hearing loss. If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. The case should be returned to the Board for further appellate review on the issue currently in appellate status as well as any issue placed in appellate status during the course of this REMAND. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. CHARLES E. HOGEBOOM 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 action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).