Citation Nr: 1013979 Decision Date: 04/13/10 Archive Date: 04/29/10 DOCKET NO. 09-40-031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial compensable rating for residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). The Veteran (appellant) served on active duty from April 1953 to April 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran was granted service connection for residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea in February 2009, and a noncompensable evaluation was assigned under DC 6079, effective from July 23, 2007, the date of his claim. The Veteran contends that this service-connected right eye disability should be assigned a higher rating. The Veteran underwent a VA examination in August 2007, and he was diagnosed with incipient cataract of the right eye, and corneal scar of the right eye. The examiner noted that the Veteran had epiretinal membrane of the right eye that caused traction on the macular area resulting in edema, puckering and deceased visual acuity. It was noted that this was most likely the cause of the Veteran's decrease in vision of the right eye. The examiner also stated that the Veteran had a corneal scar of the right eye which created decrease vision in the right eye. A private examiner noted in July 2008 that the Veteran had several disorders including corneal scarring which caused a decrease in vision. On VA examination in January 2009, the examiner noted that the Veteran had epiretinal membrane problems, causing a decrease in visual acuity, incipient cataract which caused a decrease in vision over time and corneal scar of the right eye. The examiner again reported that the Veteran had epiretinal membrane of the right eye that caused traction on the macular area resulting in edema, puckering and deceased visual acuity. It was noted that this was most likely the cause of the Veteran's decrease in vision of the right eye. The examiner also stated that the Veteran had a corneal scar of the right eye which created decrease vision in the right eye. In a January 2009 statement a private examiner reported that the Veteran's decreased visual acuity in the right eye was due to the corneal scarring. After the January 2009 examination was performed, the RO granted service connection for residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea in February 2009, and a noncompensable evaluation was assigned under DC's 6009-6079. In October 2009, Board granted service connection for macular puckering of the right eye, and in November 2009, the RO assigned a 20 percent evaluation under DC 6077. Both DC 6077 and DC 6079 are based on loss of visual acuity and DC 6009 relates to unhealed injury of the eye. The Veteran has not been examined since the October 2009 grant of service connection for macular puckering and it is unclear from the record the degree of loss of visual acuity attributable to the cornea scarring alone and the separate effects of the Veteran's service- connected disorders as well as any nonservice-connected eye disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that, when a claimant has both service- connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability). In light of the foregoing, the Board believes that a medical opinion is needed to distinguish which symptomatology results from the Veteran's service-connected residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea, rather than from his service-connected macular puckering of the right eye, and any other eye disorder diagnosed, in order to determine whether, standing alone, his service-connected residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea would warrant a compensable rating. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2009). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO should schedule the Veteran for a VA examination with an appropriate examiner for the purpose of ascertaining the severity of his service-connected residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea. All indicated evaluations, studies and tests deemed necessary should be accomplished. Following a comprehensive examination, the examiner should endeavor to distinguish, to the extent possible, the symptomatology related to the Veteran's residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea from that related to his cataracts, and any other nonservice- connected right eye condition, as well as from that related to his service-connected macular puckering of the right eye. Once the symptomatology of each has been disassociated, the examiner should offer an opinion regarding the level of impairment caused solely by symptomatology of the Veteran's service- connected residuals of trauma to the right eye, residuals metal fragment removed with scarring of the cornea in terms of the nomenclature set forth in 38 C.F.R. § 4.71a, Diagnostic Codes 6009- 6079. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate as such and indicate why this is so. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, to include the evidence of record upon which the examiner bases any opinion, in a legible report. 2. After completing the above and any additional notification and/or development deemed warranted, VA should readjudicate the Veteran's claim, in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for a response before the claims folder is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009). _________________________________________________ F. JUDGE FLOWERS 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).