Citation Nr: 1243576 Decision Date: 12/20/12 Archive Date: 12/27/12 DOCKET NO. 11-17 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for choroidoretinitis, right eye, currently rated as 10 percent disabling. 2. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a left eye disorder claimed as diminished vision, left eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from November 1943 to April 1946. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, PA, in part, denied the Veteran's claim for a rating in excess of 10 percent disabling for choroidoretinitis, right eye. The Veteran is noted to also have filed a notice of disagreement (NOD) with the September 2009 RO's denial of entitlement to service connection for diminished vision of the left eye. The RO issued a statement of the case (SOC) addressing this issue as well as the increased rating claim in March 2011. Thereafter, the Veteran submitted a signed VA Form I-9 Substantive Appeal in May 2011, wherein the Veteran indicated that he desired to limit the appeal only to the increased rating claim and advised review of an attached sheet. Attached to this Substantive Appeal was a written statement stating that the Veteran did not wish to pursue any claim for diminished vision in the left eye. He has thus withdrawn his NOD for this issue and it is not before the Board. 38 C.F.R. § 20.204 (2012). Subsequently, following the expiration of the appeal period, the Veteran's representative in a statement in lieu of a 646, and in a brief both submitted in September 2012, again raised the issue of entitlement to service connection for a left eye disorder claimed as diminished vision. Based on the above, the Board finds that a petition to reopen a previously claim for entitlement to service connection for a left eye disorder of diminished vision has been raised by the record via written communications issued by the Veteran's representative in September 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Generally given such a situation, the Board does not have jurisdiction over it, and it would ordinarily have been referred to the AOJ for appropriate action. However for reasons to be further discussed in the Remand, the Board finds that this issue is inextricably intertwined with the claim for entitlement to an increased rating for the right eye choroidoretinitis, and has thus characterized this issue to be included on this remand. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Board concludes that the petition to reopen a previously denied claim for service connection for left eye disorder of diminished vision, as explicitly raised by the authorized representative in a statement in lieu of a 646, and in a brief submitted in September 2012, is inextricably intertwined with the Veteran's claim for an increased rating for the right eye choroidoretinitis. Currently the Veteran is service connected for the right eye choroidoretinitis based on aggravation of a pre-existing eye disorder by service. The RO originally granted service connection based on aggravation with an initial 10 percent rating assigned in a June 1946 rating. In a January 1950 adjudication that continued the 10 percent rating, the RO clarified that the Veteran had entered service with his vision of 20/200 being 20 percent disabling upon entry. Upon discharge from service his vision in the right eye was 1/400, which was 30 percent disabling. Thus the aggravation was factored to be 10 percent disabling (via subtraction of the 20 percent baseline disability on entry from the 30 percent disability upon exit from the service). The Veteran neither appealed this decision, nor has he claimed that either rating of June 1946 or January 1950 were clearly and unmistakably erroneous. The Veteran's disability rating for the right eye continues to be rated as 10 percent, which continues to factor a subtraction of the 20 percent pre-service baseline rating from the current disability rating of 30 percent for the left eye disability. The Board notes that the criteria governing the evaluation of visual impairments provides that when the visual impairment of only one eye is service connected, the non service-connected eye is to be rated as 20/40, subject to the provisions of 38 C.F.R. § 3.383(a). See 38 C.F.R. § 4.75(c) (2012). The exceptions to this are shown in 38 C.F.R. § 3.383, special considerations for paired organs and extremities which provide that compensation is payable for combinations of service and non service connected disabilities specified in certain paragraphs, as if both disabilities were service connected. Such provisions are applicable in pertinent part, when one eye's visual impairment is service-connected and one eye's visual impairment is non service-connected and the impairment in each eye is rated at a visual acuity of 20/200 or less, or the peripheral field of vision for each eye is 20 degrees or less. In the immediate matter, the Board notes that most recent findings from the November 2011 VA eye examination found the right eye vision to be counting fingers (evaluated as 30 percent disabling, but subtracting the 20 percent pre-existing disability continues to be rated as 10 percent disabling). The non service connected left eye disability was shown to have a visual acuity 20/50 by this examination. The Board notes that if service connection were to be in effect for the left eye disability, the 20/50 visual acuity coupled with the visual acuity for the service connected right eye (whether rated as equal to no more than light perception in one eye; or 5/200 or 10/200) would be higher than the rating currently assigned for the 20/40 visual acuity assigned for the non service connected left eye when coupled with the service connected right eye visual impairment. See 38 C.F.R. § 4.79, Diagnostic Codes 6064, 6065 and 6066. Thus adjudication of the service connection claim in this matter would have a direct bearing on the outcome of the increased rating claim. The United States Court of Appeals for Veterans Claims has held that a claim which is inextricably-intertwined with another claim which remains undecided and pending before the VA must be adjudicated prior to a final order on the pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the entire matter must be remanded to allow the RO or AMC to address the petition to reopen the previously denied claim for service connection for the left eye disorder in the first instance, and then for the RO or AMC to consider the appropriate rating to assign for the service connected right eye disorder, which shall depend on whether the left eye disorder is service connected. Additionally, the Board finds that even if the left eye disorder is shown to not be service connected, further examination appears to be warranted to ascertain whether it falls within the special considerations for paired organs and extremities pursuant to 38 C.F.R. § 3.383. The most recent VA examination of November 2011 is not shown to have included visual field examination. Thus re-examination is needed to ascertain whether the Veteran's visual field of the left eye is 20 degrees or less, as well as to again determine the Veteran's visual acuity in that eye. The Board further finds that in regards to the pending petition to reopen a previously denied claim for service connection for the left eye disability, neither the November 2011 VA examination nor the September 2009 VA examination, or any prior examinations adequately address the question as to whether there is aggravation of the nonservice-connected left eye disorder by the service connected right eye disorder. The Board notes that any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). Thus corrective action should be taken to ensure that an adequate examination to address this matter has been obtained prior to adjudicating this matter. 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) (2012). Expedited handling is requested.) 1. Afford the Veteran an additional VCAA letter, addressing the petition to reopen a previously denied claim for service connection for a left eye disorder. All records and responses received should be associated with the claims file, and any indicated development should be undertaken. 2. After obtaining any available treatment records, the Veteran should be scheduled for a new VA examination by a physician or physicians with the appropriate expertise to determine the current level of severity of the Veteran's right eye disorder, and the nature and severity of the Veteran's left eye disorder. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. The examiner should write a comprehensive report discussing the current severity of the Veteran's right eye disability. All indicated tests and studies should be undertaken. With respect to the Veteran's right eye disability, the examiner should describe in detail all current symptoms, to include impairment of visual acuity or field loss, pain, rest requirements, and/or episodic incapacity of the eye. State the length of time during the past twelve months that the Veteran has had incapacitating episodes due to his right eye disability. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Corrected and uncorrected central visual acuity for distance and near should be measured for both eyes based on the Snellen's test type or equivalent. Visual fields should also be obtained for both eyes, if applicable. If the Veteran is blind in either eye, the examiner should so state. In regards to the nonservice left eye disability, upon careful review the claims folder and examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or more probability) that the left eye disorder was caused or aggravated (permanently increased in severity) in any way by his service-connected right eye choroidoretinitis disorder. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. The RO/AMC should adjudicate the petition to reopen a previously claim for entitlement to service connection for a left eye disorder of diminished vision in the first instance. In this regard, the Board notes that the petition to reopen a previously claim for entitlement to service connection for a left eye disorder of diminished vision, if denied by the RO, is not within the Board's jurisdiction unless an appeal is appropriately initiated and perfected. Rowell v. Principi, 4 Vet. App. 9 (1993). 4. Following completion of the above development and any additional development deemed necessary, the RO should readjudicate the Veteran's claim(s). If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence received and all applicable regulations. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination without good cause may result in the denial of the claim(s). 38 C.F.R. § 3.655 (2012). 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. 2012). _________________________________________________ J. A. MARKEY 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) (2012).