Citation Nr: 1308669 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-38 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for cataracts. 2. Entitlement to an evaluation in excess of 10 percent for left lower extremity peripheral neuropathy. 3. Entitlement to an evaluation in excess of 10 percent for right lower extremity peripheral neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. These matters come before the Board of Veteran's Appeal (Board) on appeal from an October 2006 rating decision rendered by the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the proceeding is of record. In May 2009, in pertinent part, the Board remanded the claim for service connection for cataracts and the claims for increased rating for left and right lower extremity peripheral neuropathy. At that time, the Board also referred back to the RO a claim for TDIU. In pertinent part of an October 2010 Memorandum Decision from the United States Court of Appeals for Veterans Claims (Court), the Court modified the Board's decision to refer a claim for TDIU to instead reflect remand of that claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In compliance with the Court Memorandum, the Board remanded the claim for TDIU in July 2011. After additional developed, the RO, in September 2012, awarded entitlement to TDIU, effective from February 23, 2006. The Veteran has not yet appealed the effective date of that award, and the issue is no longer before the Board. Also, in July 2011, the Board issued a decision in which it denied entitlement the claim for service connection for cataracts. In addition, the Board remanded the claims for increased rating for left and right lower extremity peripheral neuropathy in order to provide the Veteran with provided with a Supplemental Statement of the Case (SSOC) after consideration of additional evidence in the first instance. The Veteran appealed that part of the decision that denied entitlement to service connection for cataracts to the Court. In an April 2012 Order, the Court endorsed an April 2012 Joint Motion for Remand (JMR), vacated the Board decision denying entitlement to service connection, and remanded the matter for action complying with the joint motion. 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 As noted above, the Veteran's claim for entitlement to service connection for cataracts was remanded by the April 2012 Court Order for action in compliance with the instruction in the joint motion. Based on review of the claims folder, the Board finds that additional development is in order prior to adjudication of the matter. The parties to the Joint Motion for Remand determined that the Board erred when it relied upon an inadequate medical opinion from the VA examiner who conducted a July 2010 VA eye examination. After examining the Veteran, the examiner noted that the Veteran's early stage cataracts were "definitely age-related and are many years away from needing any surgical correction." In an addendum to the report, the examiner noted that he reviewed the Veteran's claims folder, but his prior opinion remained the same as dictated. While the examiner linked the Veteran's cataracts to his age, the parties in the JMR concluded that the examination was not adequate. The parties observed that the VA examiner failed to provide a rational in support of his medical conclusion that the Veteran's cataracts were age-related as opposed to caused or aggravated by his service-connected diabetes mellitus. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once the Secretary determines that a medical opinion is necessary, he is compelled to ensure its adequacy). In order to address this concern raised by the parties to the JMR, the Veteran should be afforded a new VA examination in order to determine the etiology of his cataracts. In do so, the Board instructs the VA examiner to provide a medical opinion, support by a detailed rationale, on whether the Veteran's cataracts are related to his period of service or caused by or aggravated by his service-connected diabetes mellitus. The Board notes that, under 38 C.F.R. § 3.310 (a), service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury and secondary service connection may be found where a service- connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, was enacted. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen and adds language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Again, the Board finds that a remand is needed to afford the Veteran with a new VA examination in order to obtain a clear and comprehensive medical opinion as to whether the Veteran's cataracts is related to his period of service, to include as caused by or aggravated by the service-connected diabetes mellitus. The Board asks that the examiner discuss each of the findings and conclusions in the previous VA examination report and any other pertinent medical nexus evidence in conjunction with any medical opinion rendered. Prior to any examination, the RO/AMC should obtain any outstanding records of pertinent VA or private treatment identified by the Veteran. Next, turning the increased rating claims for left and right lower extremity peripheral neuropathy, the Board previously remanded these matters in July 2011 in order for the RO (via the Appeals Management Center (AMC)) to issue a Supplemental Statement of the Case (SSOC) following consideration of additional evidence in the first instance. See generally, 38 C.F.R. § 20.1304 (2002). A review of the record, including Virtual VA paperless claims processing system, does not reflect that the Veteran has been provided with an SSOC on these matters while the appeal was pending at the Court. In addition, since the July 2011Board remand, additional evidence pertaining to the increased rating claims for peripheral neuropathy has been associated with the claims folder. A VA examination in conjunction with the Veteran's TDIU claim included the evaluation of his disability due to peripheral neuropathy in his lower extremities. Again, the Veteran has a right to have the additional evidence considered by the RO/AMC in the first instance. See generally, 38 C.F.R. § 20.1304 (2002); Disabled Veterans of America v. Principi, 327 F.3d 1339 (Fed. Cir. 2003). He has not waived review by the RO/AMC. To ensure that the Veteran's procedural rights are protected, insofar as he is afforded the opportunity for RO/AMC adjudication in the first instance, the Board must return these matters to the RO/AMC, for its initial consideration of the evidence. Thereafter, he must be provided with an SSOC. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran has been provided with proper notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection on a secondary basis under 38 C.F.R. § 3.310. 2. Contact the Veteran and seek his assistance in identifying the names, addresses and approximate dates of treatment for all health care providers, VA and private who may possess additional records pertinent to the claims remaining on appeal. 3. Once all the available treatment records have been associated with the claims folder to the extent possible, the RO/AMC should then schedule the Veteran for a VA examination, with an appropriate examiner, to determine the likely etiology of his cataracts. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings from the examination, the examiner is requested to provide opinions as to the following. (a) Whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the currently diagnosed cataracts (1) had an onset during service, or (2) were caused or aggravated by any aspect of the Veteran's periods of service. (b) Whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the currently diagnosed cataracts were caused or aggravated by the Veteran's service connected diabetes mellitus. For purposes of this analysis, aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The VA examiner should consider and discuss the findings contained in the previous VA examination report as well as any other pertinent medical nexus evidence of record. The examiner should offer a rationale for any opinion provided. If the examiner is unable to provide an opinion, then he or she should state so and explain. 4. The RO/AMC should review the claims folder and determine whether any additional notification and/or development are warranted. 5. Thereafter, the RO/AMC should re-adjudicate the claims for service connection for cataracts and for increased ratings for left and right lower extremity peripheral neuropathy in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the RO/AMC should furnish the Veteran and his representative with a supplemental statement of the case and afford the applicable time period during which the Veteran can respond. Then, the RO/AMC should return the case to the Board for further appellate consideration. 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). _________________________________________________ DAVID L. WIGHT 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).