Citation Nr: 1317654 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 08-06 550A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a chronic eye disorder, to include a vision disorder. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and E. O. ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to June 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and January 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. When this case was before the Board in December 2010, it was decided in part and remanded in part. It is now before the Board for further appellate action. In July 2010, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. In a VA Form 9 dated in November 2012, the Veteran appeared to raise the issue of increased ratings for the service-connected lumbar spine degenerative disc disease and costochondritis. He also appeared to request service connection for a cervical spine disability and a left testicle disorder. As these matters have not been adjudicated, they are referred to the agency of original jurisdiction for the appropriate consideration, which may include clarification of the claims. 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). VA will notify the appellant if further action is required. REMAND Eye disorder In January 2010, the Veteran reported that he was treated by A. Neal at Lakeside Vision and provided one document to VA indicating that his last exam there was in June 2006. The actual medical record has not yet been obtained. As the Veteran has identified treatment at the facility for an eye disorder, this record must be obtained. In the December 2010 Board remand, the Board stipulated that the Veteran should be afforded a VA examination for his claimed chronic eye disorder. Specifically, the examiner was asked to provide an opinion as to whether it is more likely than not, at least as likely as not, or less likely than not that any identified chronic acquired eye disorder had its onset during active service; is etiologically related to the Veteran's claimed inservice eye trauma; or otherwise originated during active service. The Veteran was afforded a VA examination for his eye disorder in May 2012. After examining the Veteran, the ophthalmologist opined that the Veteran's complaints of headaches, blurred vision, and sunlight sensitivity in 1984 can be attributed to tear film insufficiency at that time; however, those symptoms could also be secondary to the refractive error as diagnosed. In conclusion, the examiner found that there was not enough evidence in the medical record to support a diagnosis of tear film insufficiency following exposure to heat from stove explosion. The examiner also noted that physical findings of tear film deficiency were minimal. He noted that refractive error and lattice degeneration are not service-connected conditions. The examiner failed to provide an opinion as to whether it is at least as likely as not that the Veteran's tear film insufficiency had its onset during active service and did not provide a rationale for lattice degeneration not being a service-connected disorder. Furthermore, the examiner also stated that there was not enough evidence in the medical record to support a diagnosis of tear film insufficiency following exposure to heat and stove explosion. It appears that the examiner may have only considered the medical record of record, or lack thereof, and not the Veteran's detailed reports of the accident, his report of symptoms following the accident and treatment he received. For these reasons, the Board finds that an addendum opinion is needed from the May 2012 examiner. The United States Court of Appeals for Veteran Claims has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required in this case. As the Veteran receives health care through VA, including eye examinations, recent VA treatment records should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). TDIU Pursuant to 38 C.F.R. § 20.700(a) (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. Also, an appellant is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if he or she so chooses. 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700 (2012). In the December 2010 Board decision, the Board remanded the issue of TDIU for the issuance of a statement of the case. The Board explained that the Veteran's testimony at the July 2010 Board hearing could be reasonably construed as a timely notice of disagreement with the RO's December 2009 denial of TDIU. Pursuant to the Board's remand, the RO issued a statement of the case in October 2012 for the issue of TDIU. The Veteran submitted a timely Form 9 in November 2012 and requested a hearing at the local VA office before a Veterans Law Judge. The Veteran has not been scheduled a hearing for his TDIU claim. In light of the request, the case is remanded so that the Veteran can be scheduled for an appropriate hearing. 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. Obtain recent VA treatment records not already associated with the claims file. 2. Contact the Veteran and request that he provide or authorize the release of medical records from A. Neal at Lakeside Vision, including records pertaining to a June 2006 visit. He should also be asked to identify any additional records not already associated with the claims folder pertaining to eye disorders. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After the above development has been completed, ask the May 2012 examiner to provide an addendum opinion. If the May 2012 examiner is unavailable, the Veteran should be afforded an examination by a qualified health care provider for his eye disorders. No examination is needed to be scheduled unless the examiner feels an examination is necessary. The claims folders must be made available to and reviewed by the examiner. The examiner is requested to offer the following opinions: Is it at least as likely as not (i.e., a probability of 50 percent) that any currently diagnosed eye disorders, including pinguecula, guttata, decreased tear production, lattice degeneration and macular degeneration (see treatment record of J. Stevens dated in July 2010 and VA treatment record dated in November 2010), originated in service or are etiologically related to the Veteran's claimed inservice eye trauma? The Veteran claims that he injured his eyes when a gas stove exploded in service. Treatment included eye patches and eye drops. There is one service treatment record dated in December 1984 that notes the Veteran's reports of blurred vision at night and sunlight hurting his eyes. He was diagnosed with astigmatism at the time. The examiner is advised that the Veteran is competent to report injuries and symptoms in service, regardless of the contents of the service treatment records, and that the Veteran's reports must be considered. The rationale for any opinions should also be provided. A complete explanation for the opinions must be provided. 4. Thereafter, undertake any additional development that is deemed warranted and readjudicate the Veteran's claim for service connection for a chronic eye disorder to include a vision disorder. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 5. After the above steps are complete, take appropriate steps to schedule the appellant for a hearing for his TDIU claim with a Veterans Law Judge at the earliest possible date. 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). _________________________________________________ S.S. TOTH 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).