Citation Nr: 1002906 Decision Date: 01/20/10 Archive Date: 02/01/10 DOCKET NO. 07-34 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a bilateral eye disability, claimed as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1967 to July 1970. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the Veteran's claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. Issues not on appeal The March 2007 rating decision also denied service connection for bilateral hearing loss and numbness/tingling of the extremities. Additionally, the March 2007 rating decision granted service connection for diabetes mellitus and tinnitus and assigned a 20 percent disability rating and a 10 percent disability rating, respectively. As evidenced by the claims folder, a notice of disagreement was not filed as to any aspect of the RO's decision concerning those issues. Those issues are, therefore, not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. REMAND The Veteran has asserted entitlement to service connection for a bilateral eye disability, which he claims is due to his service-connected diabetes mellitus, type II. After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the Veteran's claim must be remanded for further evidentiary development. In order for service connection to be granted on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, as was alluded to in the Introduction, service connection has been granted for diabetes mellitus; element (2) is therefore met. As to the matter of the existence of the claimed disability, a VA treatment record dated October 2006 indicated that the Veteran underwent diabetic teleretinal imaging, through which he was diagnosed with moderate nonproliferative diabetic retinopathy. See the VA treatment record dated October 2006. However, the Veteran was subsequently afforded a VA examination in January 2007. Upon examination of the Veteran, the examiner concluded that the Veteran did not have diabetic retinopathy. See the VA examination report dated January 2007. The medical evidence is thus unclear as to whether the Veteran in fact has a current diagnosis of diabetic retinopathy [elements (1) and (3). This case presents certain a medical question which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. An examination is therefore necessary. See 38 C.F.R. § 3.159(c)(4) (2009) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA0 for the following action: 1. VBA should schedule the Veteran for an examination to address his claimed bilateral eye disability. The examiner should specifically diagnose or rule out diabetic retinopathy, with a rationale provided. If the examiner diagnoses the Veteran with any other eye disability, the examiner should further indicate whether it is at least as likely as not that the eye disability is related to the Veteran's service-connected diabetes mellitus, type II. A report of the examination should be prepared and associated with the Veteran's VA claims folder. 2. Following any further development that VBA deems necessary, the Veteran's claim should then be readjudicated. If the benefit sought on appeal remains denied, VBA should provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2009).