Citation Nr: 1107312 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 06-29 439 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for an eye disability, claimed as glaucoma. 2. Entitlement to a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321, from February 19, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2005 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for an eye disability (claimed as glaucoma). In March 2006, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2006. This appeal also arose from a March 2008 rating decision in which the RO granted service connection and assigned an initial 10 percent rating for bilateral pes planus, effective August 19, 2004. In March 2008, the Veteran filed an NOD, expressing disagreement with the initial rating assigned. In an August 2008 rating decision, the RO increased the initial rating to 20 percent, effective August 19, 2004. An SOC reflecting this increase was issued in August 2008, and a September 2008 statement from the Veteran was accepted as a substantive appeal. In February 2009, the RO awarded a 30 percent rating for bilateral pes planus, effective January 22, 2009, but denied a rating in excess of 30 percent prior to that date (as reflected in a February 2009 rating decision and supplemental SOC (SSOC)). The Board notes that, while the Veteran previously was represented by Julieanne E. Steinbacher, a private attorney, the Veteran granted a power-of-attorney in favor of Disabled American Veterans in February 2009 with regard to the claims on appeal. On his Form 9, the Veteran indicated that he desired a hearing before a Veterans Law Judge at the RO, and subsequently indicated that he instead desired a Board video-conference hearing. However, in a December 2009 letter, the Veteran withdrew his request for a hearing. In September 2010, the Board denied the claims for higher, schedular ratings for bilateral pes planus. At that time, the Board also remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C., the claims for service connection for an eye disability, claimed as glaucoma, and for a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia, and Morton's neuroma, on an extra- schedular basis pursuant to 38 C.F.R. § 3.321, from February 19, 2008, for further action, to include additional development of the evidence and for consideration of a higher rating on an extra-schedular basis. After completing the requested development, the AMC continued to deny the claim for service connection (as reflected in a December 2010 SSOC and returned the matters on appeal to the Board for further consideration. In January 2011, the Veteran's representative submitted additional medical evidence to the AMC, which was forwarded to the Board, without a waiver of initial RO consideration of the evidence. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board, again, notes that the record raises the issues of entitlement to a rating in excess of 30 percent for IBS, entitlement to hemorrhoids, secondary to IBS, entitlement to a total rating based on individual unemployability due to service-connected disabilities, and a request to reopen the claim for service connection for bilateral hearing loss. It does not appear that any of these claims has yet been addressed by the RO. As such, these matters are not properly before the Board, and are thus referred to the RO for appropriate action. REMAND Unfortunately the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the claim for a higher rating for bilateral foot disability on an extra-schedular basis, the Veteran was afforded a VA examination in February 2008, where the examiner opined that the Veteran's bilateral foot disabilities severely impacted his ability to work as a timberman. When considered in the context of the increased rating claim for which an appeal has been perfected, this evidence suggested that the bilateral foot disabilities may result in marked interference with employment- i.e., beyond that contemplated in the assigned rating-a consideration for invoking the procedures for assignment of a higher rating on an extra-schedular basis, pursuant to the provisions of 38 C.F.R. § 3.321(b). At the time of the Board September 2010 remand, the record reflected that the RO had not adequately considered the provisions of 38 C.F.R. § 3.321(b), and the claim was remanded for initial RO consideration. In the December 2010 SSOC, the AMC failed to consider this issue. In this regard, the SSOC did not include any citation to the regulation, or discussion as to whether, since February 2008, the Veteran is entitled to a higher rating for bilateral foot disability on an extra-schedular basis. Under these circumstances, and because the RO must address the applicability of the provisions of 38 C.F.R. § 3.321(b), and, if denied give the Veteran notice of those provisions, in the first instance (see Bernard v. Brown, 4 Vet. App. 384, 394 (1993)), the Board has no alternative but to, again, remand the matter of a higher rating on an extra-schedular basis to the RO, for action in compliance with the prior remand. See Stegall, 11 Vet. App. at 271. Regarding the matter of service connection for an eye disability, claimed as glaucoma, the Board notes that VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. At the time of the Board's September 2010 remand, the Veteran had not been provided an examination in connection with his claim for service connection for an eye disability. In February 2010, Dr. Bash submitted a medical opinion regarding the Veteran's claim for service connection for an eye disability (claimed as glaucoma) that did not provide for allowance of the claim, but raised a possible link between steroidal use for service- connected disabilities and glaucoma. The Board found that a medical examination and opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-was needed to resolve the claim for service connection, and the claim was remanded. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. The Veteran was afforded an eye examination in December 2010, where the ophthalmologist was to offer an opinion as to each diagnosed eye disability as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service or to service-connected disability. In rendering the requested opinion, the physician was to specifically consider the in-and post-service treatment records, Dr. Bash's February 2010 opinion, as well as the Veteran's contentions. The physician first found that the Veteran's ocular complaints were only related to refractive correction, which was found to be unrelated to military service. Thereafter, he submitted an addendum acknowledging that the Veteran had undergone recent procedures for narrow angle and open angle glaucoma, but noted, "there appear[ed] to be no relationship of his glaucoma (or ocular hypertension) to [the Veteran's] time in service." The physician provided no opinion as to the existence of any relationship between the Veteran's glaucoma and his service-connected disability(ies), to include prescribed medication for such disabilities. He also did not address any of the findings in Dr. Bash's February 2010 opinion. Dr. Bash supplied a January 2011 opinion that essentially affirmed his February 2010 opinion and noted that the VA examiner failed to discuss whether the Veteran's service-connected disabilities caused his glaucoma. Dr. Bash did not clarify, however, how the Veteran's glaucoma, which pre-dated any steroid prescription, was caused by the Veteran's steroid use. Further, the Veteran's representative did not provide a waiver of initial RO consideration of this evidence, noting that the issuance of an SSOC was requested if the opinion was not adequate to grant the Veteran's claim. See 38 C.F.R. §§ 20.800, 20.1304 (2010). Under these circumstances, the Board finds that the RO should arrange for the Veteran to undergo VA ophthalmology examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2010). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent medical facility. On remand, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2010). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. In adjudicating the claims, the RO should consider any newly submitted or obtained evidence since the last SSOC, to include the January 2011 opinion by Dr. Bash. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo ophthalmology examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability/ies affecting the eyes, to include previously diagnosed glaucoma. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the disability had its onset in or is otherwise medically related to service or to any service- connected disability (including any medication taken for such disability). In rendering the requested opinion, the physician should specifically consider and address the in-and post-service treatment records, Dr. Bash's February 2010 and January 2011 opinions, as well as the Veteran's contentions. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for an eye disability, claimed as glaucoma; as well as the claim for a rating in excess of 30 percent for bilateral pes planus, with hammer digit syndrome, metatarsalgia and Morton's neuroma, from February 19, 2008, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). The RO should adjudicate each claim in light of all pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claims) and legal authority. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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 Supp. 2010). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).