Citation Nr: 1302269 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-37 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for a low back strain. 2. Entitlement to a disability evaluation in excess of 10 percent for a cervical strain. 3. Entitlement to a compensable disability evaluation for corneal abrasion scars of the eyes, bilaterally. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from April 1979 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, increasing the disability evaluation for the Veteran's low back strain to 20 percent and continuing the 10 percent disability evaluation for a cervical strain and the noncompensable (0 percent) disability evaluation for corneal scarring. The Veteran was scheduled for a hearing before a Veterans Law Judge at the RO in Waco, Texas in October 2012. However, prior to the date of his scheduled hearing, the Veteran was contacted by telephone and notified VA that he no longer desired to have his scheduled hearing. During the above noted phone conversation, the Veteran also expressed a desire to withdraw all of the issues currently on appeal. At any time before the Board promulgates a decision, an appellant may withdraw a substantive appeal as to any or all issues at a hearing or in writing. 38 C.F.R. §20.204. The Veteran was provided an Appeal Cancellation Notification form so that he could submit his oral request to withdraw in writing. However, VA has yet to receive a written request from the Veteran to withdraw the issues currently on appeal. Since the only request to withdraw was made orally over the telephone, the issues remain in appellate status. See id. If the Veteran wishes to withdraw his appeals in the future, he may do so in writing. During the pendency of this appeal, service connection was established for posttraumatic stress disorder (PTSD), effective as of February 28, 2007. A 100 percent disability evaluation was assigned, effective as of March 11, 2010. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). 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 Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that service connection was originally established for a low back strain, a cervical strain and scarring of the corneas, bilaterally, in a June 1992 rating decision. 10 percent disability evaluations were assigned to the Veteran's low back strain and cervical strain, and a noncompensable disability evaluation was assigned for corneal abrasion scarring - effective as of April 10, 1992. The Veteran did not appeal this decision. In February 2007, VA received a claim from the Veteran seeking higher disability evaluations. In a December 2007 rating decision, the evaluation for the Veteran's low back strain was increased to 20 percent, effective as of February 28, 2007. The previously assigned 10 percent evaluation for a cervical strain and the noncompensable evaluation for corneal scarring were continued. VA received a timely notice of disagreement as to the assigned ratings in December 2008, but they were continued in a July 2009 statement of the case. The Veteran appealed the assigned ratings to the Board in October 2009. Upon filing his most recent claim, the Veteran was afforded VA examinations of the spine and the eyes in August 2007. There have been no further examinations of the spine or eyes since this time. However, the Veteran notified VA in a statement received in April 2012 that the residuals of his bilateral eye condition had worsened. The Veteran also specifically requested new VA examinations for his spine conditions in his October 2009 appeal to the Board. The Veteran indicated that he now required a back brace. A review of the August 2007 VA examination report indicates that the Veteran did not require a back brace as of that time. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In the present case, it has been more than 5 years since the Veteran's last examination. The Veteran has also alleged a worsening in his overall symptomatology and requested new examinations before appellate review proceeds. As such, he should be scheduled for more recent VA examinations in order to determine the current level of severity of his service-connected disabilities. In addition, the most recent evidence of treatment at the VA Medical Center (VAMC) in Waco, Texas is dated March 2011. This includes evidence contained in the Veteran's physical claims file and in his electronic file (Virtual VA). Medical records prepared since this time should be obtained and incorporated into the evidence of record, either physically or electronically. Accordingly, the case is REMANDED for the following action: 1. VA treatment records from the VAMC in Waco, Texas prepared since March 2011 must be obtained and incorporated into the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. 2. The Veteran should also be afforded a VA examination(s) before an appropriate specialist to determine the current severity of his service-connected low back strain and cervical strain. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination. The examiner should describe in detail all symptomatology associated with the Veteran's lumbar and cervical spine, including limitation of motion. The Veteran's lay statements regarding symptomatology should also be discussed and considered. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with any segment of the spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. Finally, the examiner should indicate whether the Veteran suffers from incapacitating episodes as a result of his low back strain or cervical strain. For VA purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If incapacitating episodes are found, the examiner should indicate the duration and frequency of such episodes. 3. The Veteran should also be scheduled for a VA examination before an appropriate specialist to determine the current level of severity of his bilateral corneal scarring of the eyes. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination. The examiner should describe in detail all symptomatology associated with the corneal scarring, including any impairment of central visual acuity or any impairment of the visual fields. The Veteran's lay statements regarding symptomatology should also be discussed and considered. 4. The agency of original jurisdiction (AOJ) should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner. 5. The AOJ should then readjudicate the claims on appeal in light of all of the evidence of record. If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford her a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ T. MAINELLI 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) (2012).