Citation Nr: 1135781 Decision Date: 09/23/11 Archive Date: 10/03/11 DOCKET NO. 07-37 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for residuals of a traumatic injury to the right eye. 2. Entitlement to a total evaluation based upon individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Costas, Counsel INTRODUCTION The Veteran served on active duty January 1963 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 1976 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. That decision granted service connection for residuals of a traumatic injury to the right eye and assigned a noncompensable evaluation effective from November 10, 1975. In May 1976, the Veteran submitted a notice of disagreement with the assigned disability rating. The RO issued a statement of the case (SOC) in April 1976, and the Veteran perfected his appeal in April 1976. In May 1976, the RO revisited the matter, determined that there was clear and unmistakable error in the February 1976 evaluation of Veteran's eye disability, and awarded an initial disability rating of 20 percent effective from November 10, 1975. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remained on appeal to the Board. However, the matter was not forwarded to the Board for appellate review. Accordingly, the matter is on appeal from the February 1976 rating decision. 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 with respect to the Veteran's claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that he is afforded due process and that the duty to assist is satisfied. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In this case, it appears that there may be additional treatment records that are not associated with the claims file. In this regard, the claims file does not contain any medical records dated from 1975 to 2005. Therefore, the RO should attempt to obtain and associate with the claims file any and all treatment records pertaining to the Veteran's service-connected right eye disability. The Board also notes that the Veteran was most recently afforded a VA examination in August 2006. The Veteran's representative submitted an informal hearing presentation in September 2011 in which he asserted that examination is no longer a contemporaneous representation of the Veteran's current disability. Indeed, it has been over five years since the last examination. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right eye disability. The Board also notes that the Veteran submitted a statement in October 2006 in which he indicated that he had to take an early retirement due to his right eye disability. The Court has recently held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the RO should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected right eye disability. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. 2. After obtaining all identified and available records, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right eye disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service medical records and assertions. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria, including findings regarding his visual acuity, visual field, and muscle function. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disorder, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 4. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 Supp. 2010). _________________________________________________ JESSICA J. WILLS Acting 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) (2010).