Citation Nr: 1110395 Decision Date: 03/16/11 Archive Date: 03/30/11 DOCKET NO. 06-31 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Enititlement to an initial evaluation in excess of 10 percent for for service-connected residuals of a fracture of the 4th and 5th metacarpals of the right hand. 2. Enititlement to an initial evaluation in excess of 10 percent for service-connected growth of the left testicle. 3. Enititlement to an initial compensable evaluation for a service-connected right ear hearing loss disability. 4. Enititlement to service connection for a bilateral shoulder condition. 5. Enititlement to service connection for a right elbow condition. 6. Enititlement to service connection for residuals of a rib injury. 7. Enititlement to an initial compensable evaluation for service-connected hypertension. 8. Enititlement to an initial compensable evaluation for service-connected ptosis of the right eyelid. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Army, with active service from June 1974 to June 1996. This case comes before the Board of Veterans' Appeals (the Board) on appeal from February 2006 and July 2008 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. (the RO). In December 2010, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned. A transcript of that hearing has been associated with the Veteran's VA claims folder. After the December 2010 hearing, the Veteran submitted evidence directly to the Board, accompanied by a written waiver of consideration of such evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2010). The issue of entitlement to an effective date earlier than September 29, 2006 for the grant of service connection for hypertension has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See the Veteran's February 2010 statement. Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) [the Board does not have jurisdiction of issues not yet adjudicated by the RO]; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO granted the Veteran service connection for stroke residuals in the July 2008 rating decision. The Veteran expressed disagreement with that decision and initiated an appeal. In a January 2010 statement of the case (SOC), the RO granted service connection for: weakness of the right lower extremity, evaluated 20 percent disabling; weakness of the right upper extremity, evaluated 10 percent disabling; disequilibrium, evaluated 10 percent disabling; and facial numbness associated with the 5th cranial nerve, evaluated noncompensabliy (zero percent) disabling. These awards were all granted as secondary to the Veteran's service-connected stroke and were awarded effective February 23, 2007. Since service connection was granted, the Veteran's appeal as to those issues has become moot. The Veteran has not disagreed with the assigned evaluations or the effective dates. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. Therefore, those matters have been resolved and are not in appellate status. The issue of enititlement to an initial compensable evaluation for service-connected ptosis of the right eyelid is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In January 2008, prior to the promulgation of a decision in the current appeal, the Veteran asked that his claims reagrading his metacarpals, left testicle, right ear hearing loss, bilateral shoulders, right elbow and rib injury be withdrawn from appellate review. 2. The competent medical and other evidence of record reflects that the Veteran's service-connected hypertension has been manifested by continuous prescribed medication, but diastolic pressure predominantly less than 100 and systolic pressure predominantly less than 160. 3. The competent evidence of record does not show that the Veteran's service-connected hypertension is so exceptional or unusual that referral for extraschedular consideration by the designated authority is required. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a Substantive Appeal with respect to the issues of (1) enititlement to an initial evaluation in excess of 10 percent for for service-connected residuals of a fracture of the 4th and 5th metacarpals of the right hand, (2) enititlement to an initial evaluation in excess of 10 percent for service-connected growth of the left testicle, (3) enititlement to an initial compensable evaluation for a service-connected right ear hearing loss disability, (4) enititlement to service connection for a bilateral shoulder condition, (5) enititlement to service connection for a right elbow condition and (6) enititlement to service connection for residuals of a rib injury have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010). 2. The criteria for an initial compensable evaluation for service-connected hypertension are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2010). 3. The criteria for referral of the Veteran's service-connected hypertension for consideration on an extra-schedular basis are not met. 38 C.F.R. § 3.321(b)(1) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) Initially, as will be further discussed below, the Veteran has withdrawn his claims reagrading his metacarpals, left testicle, right ear hearing loss, bilateral shoulders, right elbow and rib injury. As such, the Board finds that any error related to the VCAA on those claims is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Concerning the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for increased ratings. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's hypertension claim arises from a granted claim of service connection. The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements in initial ratings cases. See Dunlap v. Nicholson, 21 Vet. App. 112 (2006). Prior to initial adjudication of the Veteran's claims, letters dated in November 2007 and January 2008 fully satisfied the duty to notify provisions concerning his claim for service connection, to include how VA determines disability ratings and effective dates. See Dingess, supra. The Veteran was informed that evidence was needed showing his service-connected hypertension had increased in severity. He was informed of the types of evidence that could substantiate his claim, such as medical records or lay statements regarding personal observations. He was asked to provide information as to where he had been treated for his left foot disabilities and informed that VA was responsible for obtaining any federal records, VA records, and a medical examination, if necessary. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service medical records and VA treatment records are in the file. Additionally, private treatment records identified by the Veteran have been obtained and associated with the Veteran's claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The RO provided the Veteran an appropriate VA examination in July 2008. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected hypertension since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The July 2008 VA examination report is thorough and supported by VA outpatient treatment records. The VA examiner specifically noted that the Veteran's complete VA claims file was reviewed, a physical examination was performed and the VA examiner recorded subjective complaints and objective findings. As such, the Board concludes that the July 2008 VA examination is adequate for the purposes of this decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also 38 C.F.R. § 4.2 (2010). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Sanders v. Nicholson, 487 F.3d 881 (2007). The metacarpals, left testicle, right ear hearing loss, bilateral shoulder, right elbow and rib injury claims A Veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. See 38 C.F.R. § 20.204 (2010). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. See 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2010). In a statement dated in January 2008, the Veteran asked that his appeals concerning his metacarpals, left testicle, right ear hearing loss, bilateral shoulder, right elbow and rib injury be withdrawn from appellate review. Specifically, the Veteran added that he wished to withdraw all pending claims except those for hypertension and stroke residuals, to include ptosis of the right eyelid. See a statement from the Veteran dated in January 2008. In view of his expressed desires, the Board concludes that further action with regard to this issue is not appropriate. The Board does not have jurisdiction over the withdrawn issues, and, as such, these issues are dismissed. Increased Ratings Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2010). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"]. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Discussion The Veteran's service-connected hypertension is currently evaluated as noncompensable (zero percent) disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101 [hypertension]. As per Diagnostic Code 7101, a 10 percent evaluation is warranted when diastolic pressure predominantly 100 or more, or; systolic pressure of 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent evaluation is warranted when diastolic pressure predominantly 120 or more. A 60 percent evaluation is warranted when diastolic pressure predominantly 130 or more. See 38 C.F.R. § 4.104 (2010). These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. With the above criteria in mind, the Board notes the Veteran's testimony that he is prescribed blood pressure medication, and the prescription has been changed several times in an effort to control his hypertension. See the VA hearing transcript at page 6. Indeed, the Board notes that the competent vmedical evidence of record reflects that the Veteran's service-connected hypertension greatly fluctuates. Specifically, private treatment records reflect a blood pressure reading of 160/110 in September 2009 and 78/48 in November 2009. However, the Veteran has not demonstrated blood pressure readings reflective of a diastolic pressure reading predominantly at 100 or more, with or without continuous medication, or systolic pressure predominantly at 160 or more during the pendency of the appeal. Specifically, VA and private treatment records between June 2005 and October 2010 reflect that the Veteran's systolic pressure readings have been recorded at 160 or more on four occasions and his diastolic pressure readings have been recorded at or more than 100 on four occasions. These findings can hardly be considered "predominant" in light of the nearly five-year pendency of this claim. In conclusion, the competent and other medical evidence of record fails to reflect that the Veteran's service-connected hypertension meets the criteria for a higher evaluation. Specifically, the record does not reflect diastolic pressure predominantly 100 or more, systolic pressure of 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. As such, there is no basis for awarding the Veteran a compensable evaluation for his service-connected hypertension at any time under consideration. See Fenderson, supra. Extraschedular Considerations The Board has also considered an extraschedular evaluation. The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The Board notes that the Veteran's representative asserts that the schedular criteria are inadequate for evaluating the Veteran's service-connected disability decided herein. The Board disagrees. As fully detailed above, a higher evaluation is available where specific criteria are met. The Veteran does not meet the schedular criteria for a higher evaluation. It does not appear that the Veteran has "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disability that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluation for this service-connected disability is adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. ORDER Enititlement to an initial evaluation in excess of 10 percent for for service-connected residuals of a fracture of the 4th and 5th metacarpals of the right hand is dismissed. Enititlement to an initial evaluation in excess of 10 percent for service-connected growth of the left testicle is dismissed. Enititlement to an initial compensable evaluation for a service-connected right ear hearing loss disability is dismissed. Enititlement to service connection for a bilateral shoulder condition is dismissed. Enititlement to service connection for a right elbow condition is dismissed. Enititlement to service connection for residuals of a rib injury is dismissed. Enititlement to an initial compensable evaluation for service-connected hypertension is denied. REMAND Unfortunately, a remand is required concerning the claim enumerated below. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Veteran has been awarded service connection for ptosis of the right eyelid, currently evaluated noncompensably disabling as per Diagnostic Code 6019 [ptosis, unilateral or bilateral]. Effective December 10, 2008, VA revised the schedular rating criteria for the evaluation of eye disorders. See 73 Fed. Reg. 66,543-66,554 (Nov. 10, 2008); see also corrections at 74 Fed. Reg. 7,648 (Feb. 19, 2009). The Veteran's service-connected disorder must therefore be evaluated under both the former and revised criteria, though the revised criteria may not be applied at any point prior to the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2010); VAOPGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003). The previous version of Diagnostic Code 6019 (prior to December 10, 2008), provided that unilateral or bilateral ptosis with the pupil wholly obscured should be rated equivalent to 5/200. Unilateral or bilateral ptosis with the pupil one-half or more obscured should be rated equivalent to 20/100. Unilateral or bilateral ptosis with less interference with vision should be rated as disfigurement. The impairment of central visual acuity is evaluated from 0 to 100 percent under Diagnostic Codes 6061 through 6079. Also, Diagnostic Code 6080 provides ratings for impairment of field vision from 10 to 100 percent. The post-December 10, 2008, Diagnostic Code 6019 provides that unilateral or bilateral ptosis is evaluated on visual impairment or, in the absence of visual impairment, on disfigurement (scarring) as per Diagnostic Code 7800. The criteria for evaluation of the scars is found at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7806. In addition, the criteria for evaluating skin disorders was revised during the pendency of this case, effective October 23, 2008. Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. See Karnas, supra. The Board observes, however, that when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C.A. § 5110(g); VAOGCPREC 3- 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). As the Veteran's claim was received prior to the October 23, 2008, revision, the Board will consider both the old and revised criteria in this case. Even though the criteria have been rephrased, the elements to be considered in determining the degree of disability of the Veteran's service-connected burn scars are essentially unchanged. Moreover, this revision was noted in both the January 2010 SOC. Therefore, the Board finds that its consideration of both the revised and old criteria is not prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under Diagnostic Code 7800 (effective prior to October 23, 2008), a 10 percent rating is warranted for disfigurement of the head, face or neck with one characteristic of disfigurement. A 30 percent rating is warranted where there is disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or, where there are two or three characteristics of disfigurement. A 50 percent rating is warranted where there is disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or, where there are four or five characteristics of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800 (2007). The eight characteristics of disfigurement are: scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1 (2007). The criteria effective as of October 23, 2008, make clear that characteristic(s) of disfigurement may be caused by one scar or by multiple scars, and need not be caused by a single scar in order to assign a particular evaluation. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 5 (2010). Concerning the Veteran's service-connected ptosis of the right eyelid under former and current Diagnostic Code 7800, the Board notes that the competent and other medical evidence of record reflects that the Veteran suffers from a "droopy" left eyelid. See e.g. the July 2008 VA examination report. The medical evidence of record appears to be adequate to adjudicate the Veteran's claim under former and current Diagnostic Code 7800. However, to the extent that current Diagnostic Code 6019 contemplates the Veteran's visual acuity under 38 C.F.R. § 4.79 Diagnostic Codes 6061 - 6081, the Board notes that the Veteran testified that the visual acuity of his right eye has worsened since his most recent VA optometry consultation in January 2009. Specifically, the Veteran contends that he experiences vision loss and blurriness in his right eye. See the December 2010 VA hearing transcript at page 4. Initially, in this regard, the Board acknowledges that the Veteran is competent to report symptoms because such actions come to him through his senses and, as such, require only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482, 494-495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992), Moray v. Brown, 5 Vet. App. 211 (1993). Of further significance to the Board is the fact that the 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, 402-403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In light of the Veteran's contentions of decreased visual acuity and increased blurriness in the right eye since the most recent optometry consultation in January 2009, the Board finds that additional VA examination is necessary to determine the current nature and extent of this service-connected disability. Finally, the Board notes that the Veteran has asserted that he has received recent private and VA treatment for his service-connected right eye condition. See the December 2010 VA hearing transcript at pages 7 - 8. The duty to assist obligates VA to obtain these records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005) (noting that the Secretary has a duty to assist in obtaining relevant and adequately identified records); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all VA and non-VA health care providers that have treated him for his service-connected ptosis of the right eyelid. 2. The Veteran should complete a release for any private treatment records identified by him prior to any attempts to obtain such. All records obtained should be associated with the Veteran's VA claims file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 3. Obtain and associate with the claims file all identified outstanding records of VA treatment pertaining to the Veteran's service-connected ptosis of the right eyelid. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 4. The AMC must schedule the Veteran for an eye examination to determine the current extent to which his service-connected ptosis of the right eyelid affects his visual acuity. The following considerations will govern the examinations: a. The claims file must be provided to and reviewed by the VA examiner in conjunction with his or her examination. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner should set forth in the examination report all examination findings and the complete rationale for any conclusions reached. b. The VA examiner must comment on the extent to which any impairment of central visual acuity is attributable to the service-connected ptosis of the right eyelid. A complete rationale should be provided for all opinions expressed. 5. The AMC should then readjudicate the claim in light of all of the evidence of record on the merits. If the claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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). The Veteran is advised that failure to appear for VA examinations could result in the denial of his claim. 38 C.F.R. § 3.655 (2010). See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs