Citation Nr: 1319258 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 08-01 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased evaluation for small angle esotropia, currently rated 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from May 1976 to May 1996. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, denying an increased evaluation for small angle esotropia. In September 2011, the Board recognized a TDIU claim as raised by the record and as part of the appealed increased rating claim, pursuant to Rice v. Shinseki, 22 Vet. App. 477 (2009). The Board then remanded the increased rating and TDIU claims for additional development, and they now return to the Board for further review. 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 In a January 2012 statement, the Veteran contends that she must take codeine for treatment of her service-connected cervical spine disability and management of associated pain. She also contends that this drug makes her groggy and causes her to have constant diplopia. She further contends, in effect, that her small angle esotropia is thus made more severe than that reflected by the 30 percent evaluation currently assigned for that disability, and that she is entitled to a TDIU based on the incapacitated state in which she now permanently finds herself based on the codeine taken for her cervical spine disability and its resulting side effects. The Board believes that a medical examination is in order to evaluation the nature and severity of the Veteran's claimed disabilities, to include the resulting side effects of any medication necessary for treatment of these disabilities. An examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See 38 C.F.R. § 3.159(c)(4) (2012). Additionally, at her most recent eye examination for compensation purposes in November 211, the Veteran asserted that she was fired from her most recent job due to pushing the wrong buttons on her computer, implicating her small angle esotropia as the reason for her firing. In her January 2012 statement she informed that she was employed was as a 911 dispatcher. Records or a response from this former employer regarding the effect, if any, of her disabilities on her work and/or on her employment having been terminated may serve to support her claims and should accordingly be sought upon remand. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of the remanded claims. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remanded claims. In particular, records should be obtained from the Veteran's primary care provider, Dr. V. (as named in her statement received at the RO in January 2012), who reportedly prescribed codeine for her neck pain upon a visit on November 30, 2011. 3. With appropriate authorization from the Veteran, records and responses should be sought from the Veteran's former employer for her work as a 911 dispatcher. Ask that employer to provide the reasons that the Veteran's employment was terminated. Also ask the employer to provide any records which may inform of the Veteran's disabilities and their effect on her work functioning. 4. Thereafter, afford the Veteran VA examinations by an orthopedist for her service-connected chronic neck strain, and by a ophthalmologist or optometrist for her small angle esotropia, to address the nature and severity of these disorders and their impact on employability of the Veteran. The claims files must be made available to and reviewed by the examiners. Any indicated studies should be performed. The RO or the AMC should ensure that the examiners provide all information required for rating purposes. The examiners should do the following: a. The examiners are requested to carefully review the claims file including past VA examination records, treatment records, and statements by the Veteran. b. The Veteran has contended that she must take codeine to relieve the pain from her neck, and also alleges that the codeine makes her too groggy to work and that it makes her diplopia constant. The examiners should address the necessity of the Veteran taking codeine for her neck pain, in light of her reported significant side effects of that medication. The examiners should also, to the extent feasible, provide objective findings of the effect of the prescribed codeine on the Veteran's disabilities and functioning. c. Current examination findings should also be compared with other prior examination findings, including upon eye examinations for compensation purposes in November 2006, November 2008, and November 2011, neurological examination for small angle esotropia and associated headaches for compensation purposes in March 2008, and neck examination in November 2011. Prior treatment records should also be reviewed, including recent chiropractic treatment records reflecting both cervical and lumbar spine pain complaints. d. The examiners should also endeavor to provide a complete description of the effects of the Veteran's small angle esotropia and chronic neck strain upon ordinary activities, including employment. e. The rationale for each opinion expressed must also be provided. 5. Thereafter, readjudicate the remanded claims. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).