Citation Nr: 1309268	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  07-23 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for blindness of the left eye, with light perception only.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1975 to November 1981.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. 
 
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  
 
It appears that the issue of waiver of overpayment has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

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 United States Court of Appeals for Veterans Claims (hereinafter: the Court) held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In February 2011 the Board remanded the claim to obtain additional evidence, including private records from Retina Consultants of Southwest Florida after the Veteran provided an authorization for release.  

In March 2011 a letter with authorization form, Form 21-4142, was mailed to the Veteran in Vista, California however it was returned to sender.  In March 2011 a letter and authorization letter were mailed to the Veteran in Escondido, California.  A May 2011 followup letter was sent to the address in Vista California.  It was unclear whether or not the Veteran received the prior letters and on March 10, 2012 the Appeals Management Center (AMC) sent a letter and authorization form to the Veteran in El Paso, Texas.  

On March 19, 2012 the RO received the authorization form from the Veteran, however, it was not associated with the claims file until August 2012.  

VA has not fulfilled its duty to assist the Veteran in obtaining these records.  A remand for compliance with the prior remand is required. 

The Veteran himself may wish to attempt to get the records himself in order to expedite his case.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims folder the Veteran's medical records from Retina Consultants of Southwest Florida from January to December 2003. 

2.  When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence.  

If the benefit sought is not granted, the Veteran and his representative 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 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).


_________________________________________________
JOHN J. CROWLEY 
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).