Citation NR: 9715356 Decision Date: 05/02/97 Archive Date: 05/16/97 DOCKET NO. 91-48 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for residuals of a perforation of the left eardrum. 2. Whether new and material evidence has been received to reopen a claim for service connection for a disorder of the left ear manifested by vertigo, including Meniere’s disease. REPRESENTATION Appellant represented by: Richard Paul Cohen, Esq. WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from November 1952 to November 1954. Review of the claims folder indicates that the veteran has raised (most recently in a January 1997 statement) the issue of entitlement to a finding of clear and unmistakable error in prior decisions. The United States Court of Veterans Appeals (Court) has held that an assertion of clear and unmistakable error “is a very specific and rare kind of ‘error.’ It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” Fugo v. Brown, 6 Vet.App. 40, 43 (1993), petition for review en banc denied, 6 Vet.App. 162 (1994). In addition, the Court has explained that “simply to claim clear and unmistakable error on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error.” Fugo, 6 Vet.App. at 44. Furthermore, the United States Court of Appeals for the Federal Circuit has held that otherwise final decisions of the Board are not subject to collateral review for claims of clear and unmistakable error under 38 C.F.R. § 3.105(a). Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). The matter of clear and unmistakable error in a prior decision is not inextricably intertwined with the current appeal and is, therefore, referred to the regional office (RO) for appropriate action. In this regard, the Board notes that, in the supplemental statement of the case which was furnished to the veteran in November 1996, the hearing officer who had conducted the February 1996 personal hearing explained that the Board had addressed the clear and unmistakable error claim in August 1993 and that the veteran did not appeal the decision. Significantly, however, the August 1993 letter from the Board actually notified the veteran, through his attorney, of the denial of his (the veteran’s) motion for reconsideration and did not represent notification of denial of the issue of entitlement to a finding of clear and unmistakable error in prior decisions. REMAND In March 1993, the Board of Veterans’ Appeals (Board) denied the claim of entitlement to service connection for residuals of a perforation of the left eardrum and the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for a disorder manifested by vertigo, including Meniere’s disease, of the left ear. In August 1993, the Board denied the veteran’s motion for reconsideration of the Board decisions dated in February 1984, December 1986, and March 1993. In [citation redacted], the Court vacated the Board’s March 1993 decision and remanded the case to the Board for further evidentiary development and readjudication consistent with a Joint Motion for Remand and To Stay Further Proceedings (Joint Motion) submitted by the parties. According to the Joint Motion, the parties agreed that VA did not fulfill its duty to assist the veteran in the development of his claims. Specifically, the parties concluded that VA had a heightened duty to assist the veteran in the present case because his service medical records, which were located at the National Personnel Records Center, had been destroyed in a 1973 fire at that facility. Significantly, the parties noted that at no time during the appeal was the veteran advised of the alternate methods of proof, other than the service medical and personnel records. Consequently, the parties concluded that, on remand, the veteran should be advised of the alternative forms of evidence for possible substantiation of his claims, pursuant to the VA Adjudication Procedure Manual, Manual M21-1. In addition, the Board was directed to consider carefully and to discuss the records used by the Social Security Administration to support its grant of disability benefits for the veteran (which were not included in the claims folder) as well as a particular report by one of his private physicians. In August 1994, the Board remanded the veteran’s claim to the RO for further development pursuant to the Court’s Order and the Joint Motion. In this remand, the Board noted the parties’ conclusion that VA should have advised the veteran of the alternative methods of proof to substantiate his claims, as outlined in M21-1. The Board specifically asked the RO to advise the veteran, through his attorney, that he may submit, in accordance with M21-1, evidence that may be considered in lieu of missing service medical records and to provide a list of the alternative methods of proof which could be used to support his claims. In a subsequent letter dated in October 1994, the RO asked the veteran’s attorney, pursuant to the Board’s remand, to provide addresses for lay witnesses and written authorizations for release of records from physicians and medical facilities where the veteran had received treatment. In addition, the RO informed the veteran’s attorney that he could also submit “evidence to be considered in lieu of missing service records.” Significantly, however, the RO did not inform the veteran, or his attorney, of the specific types of such evidence, as both the parties in the Joint Motion and the Board in its August 1994 remand had directed. At the personal hearing conducted before a hearing officer at the RO in February 1996, the veteran provided the name of someone who knew him during his active military duty. 1996 hearing transcript (1996 T. at 7-8). The veteran also testified that he did not know the address or social security number of this potential witness but did recall that this person served at approximately the same time and had the same military occupational specialty (MOS) as he (the veteran). Review of the claims folder indicates that the RO made no attempt to locate the address of this potential witness. In any event, the veteran was never informed of the alternative sources of evidence. The relevant portion of M21-1 provides that alternative sources of evidence may be utilized in fire-related cases. A non-exhaustive list of documents which may be substituted for service medical records in fire-related cases includes: VA military files; statements from service medical personnel; “buddy” certificates or affidavits; state or local accident and police reports; employment physical examinations; medical evidence from hospitals clinics, and private physicians by which or by whom a veteran may have been treated, especially soon after service discharge; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations. VA Adjudication Procedure Manual, Manual M21-1, Part III, paragraphs 4.23, 4.25(c), and 4.29 (July 12, 1995). The Board acknowledges the fact that the veteran’s attorney recently filed, with the Court, a petition for extraordinary relief due to an unreasonable delay in the adjudication of these claims after remand by the Court. However, the Board is confined by the Joint Motion. Moreover, as the Board has discussed, the instructions set forth in the Joint Motion were not followed. Significantly, in a January 1997 statement, the veteran agreed that VA has not complied with the instructions provided in the Joint Motion. In particular, he asserted that VA improperly relied upon the lack of service medical records to denial his claims. Accordingly, the case is remanded to the RO for the following: 1. The veteran should be contacted and requested to furnish a complete list of all medical personnel and facilities from which he has received treatment for his left ear in recent years. Any health care providers named by the veteran, from whom records have not already been received, should be contacted (after the appropriate releases from the veteran are obtained where necessary), and requested to provide copies of all treatment records in their possession pertaining to the veteran. If these records are unavailable, that fact should be annotated in the claims folder. Any available records not previously obtained should be associated with the claims folder. 2. The RO should also contact the veteran and advise him that he may submit alternative evidence supportive of his contention he incurred the disabilities on appeal during his active military duty. This evidence may include (but is not limited to) VA military files; statements from service medical personnel; “buddy” certificates or affidavits; state or local accident and police reports; employment physical examinations; medical evidence from hospitals clinics, and private physicians by which or by whom a veteran may have been treated, especially soon after service discharge; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations. 3(a). Furthermore, the veteran should be accorded a VA examination by a board certified ears, nose, and throat specialist, if available, to determine the nature, extent, and etiology of his left ear disorder(s), including residuals of a left eardrum perforation and a left ear disorder manifested by vertigo and Meniere’s disease. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior to conduction and completion of the examination. Any indicated necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. All findings should be reported in detail. 3(b). The examiner must list all left ear disorders, including residuals of a left eardrum perforation and a left ear disorder manifested by vertigo and Meniere’s disease, which are found on examination. In addition, the examiner must express an opinion concerning the etiology of all disabilities shown on examination. Specifically, the examiner must express an opinion as to whether it is at least as likely as not that the veteran’s current left ear disabilities were caused by the left ear disorders noted on the November 1954 separation examination (mastoid scar of the left ear, no visualization of the left eardrum, and hearing loss in the left ear--0/15 whispered voice), were the result of close proximity to machine-gun fire and explosions occurring approximately 45 years previously during service, or were the result of some other etiology. The examiner must provide a complete rationale for all opinions expressed. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should review the requested examination report and required opinion(s) to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 5. After undertaking any development deemed appropriate in addition to that specified above, the RO should re- adjudicate the issues of entitlement to service connection for residuals of a perforation of the left eardrum, and whether new and material evidence has been submitted to reopen a claim for service connection for a disorder of the left ear manifested by vertigo, including Meniere’s disease. If the benefits sought on appeal are not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. RONALD R. BOSCH Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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 & Supp. 1996), 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) (1996). - 2 -