Citation Nr: 1321967 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-47 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for left eye pseudophakia. 2. Entitlement to an increased rating in excess of 30 percent for asthma. 3. Entitlement to service connection for nuclear sclerotic cataract of the right eye, to include as secondary to service-connected asthma. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for patellofemoral syndrome of the right knee. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for patellofemoral syndrome of the left knee. 6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for degenerative joint disease of the right ankle. 7. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for degenerative joint disease of the left ankle. 8. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 9. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 10. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for gout. 11. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. 12. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Diane Olsen, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2008, July 2009, and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2012, the Veteran testified before a Veterans Law Judge (VLJ) during a videoconference hearing. A transcript of the hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Review of the record indicates that the Veteran's last VA examination for his service-connected asthma and left eye pseudophakia were in July 2009 and July 2010, respectively. Upon review, the Board finds that more current examinations are necessary to properly evaluate the severity of these conditions. The Board also notes that at the April 2012 hearing, the Veteran admitted to receiving treatment and prescribed medication for his service-connected disabilities at his local VA outpatient treatment facility. Given that the most recent VA outpatient treatment records are dated in January 2012, a request for additional records must be made. The Board notes that issues #3-12 were denied in a September 2010 rating decision. In November 2010, the Veteran expressed disagreement with this determination; however, no statement of the case (SOC) has been issued addressing the claims. Manlicon v. West, 12 Vet. App. 238 (1999). As a final matter, the Board notes that a VA Form 21-22a (Appointment of Individual as Claimant's Representative) recognizing a different private attorney, Kenneth L. LaVan, than the one who appeared at the April 2012 Board hearing, Diane Olsen. Since only one attorney may be recognized at a time clarification in this regard should be obtained. Accordingly, the case is REMANDED for the following action: 1. Clarify, in writing, the Veteran's intentions regarding his representation in this appeal, and appropriate documentation (i.e., VA Form 21-22 or VA Form 21-22a) concerning such representation should be associated with the claims file. 2. Obtain and associate with the claims file all outstanding records of VA treatment from the VA Healthcare System in Florida. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 3. Schedule the Veteran for a VA respiratory examination to determine the current nature and severity of his service-connected asthma. The claims file should be provided to the examiner for review and the examiner should note that it has been reviewed. All necessary tests and studies are to be performed, including pulmonary function tests. It is essential that the pulmonary function study contains the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FEV-1/FVC). The examiner should also specifically note whether the Veteran's asthma requires at least monthly visits to a physician for required care of exacerbations, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, or daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. The examiner should note the Veteran's complaints regarding symptoms associated with this disability. All opinions expressed must be supported by a complete rationale. 4. Schedule the Veteran for a VA eye examination to ascertain the current severity of his service-connected left eye pseudophakia. The claims folder must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner, to include visual acuity testing (uncorrected and corrected central visual acuity for distance and near) and field of vision testing, should be performed. The examiner must chart any visual field defect using a Goldmann Perimeter Chart (with at least two tests per eye) and discuss any associated impairment of visual acuity. The charts must be made a part of the report of examination. The degree of the visual field in all eight principal meridians must also be included not just in the chart, but in examination report. The examiner must also provide a detailed description of the nature and extent of the Veteran's service-connected left eye disability, to include, but not limited to, any cosmetic defect and whether the service-connected left eye disability causes incapacitating episodes. The examiner should take a full history from the Veteran, include all complaints related to the left eye disability. All opinions expressed must be supported by a complete rationale. 5. Issue a SOC to the Veteran and his attorney, addressing the issues of entitlement to service connection for nuclear sclerotic cataract of the right eye, to include as secondary to service-connected asthma; entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU); and whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for patellofemoral syndrome of the right knee, patellofemoral syndrome of the left knee, degenerative joint disease of the right ankle, degenerative joint disease of the left ankle, bilateral hearing loss, tinnitus, gout, and a back disorder. The Veteran and his attorney must be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issues be returned to the Board for further appellate consideration, if otherwise in order. 6. After accomplishing any additional development deemed appropriate, readjudicate the claims remaining on appeal. The claims for increased ratings for the service-connected asthma and left eye pseudophakia must be considered on both schedular and extra-schedular bases, as the matter of entitlement to extraschedular ratings for both service-connected disabilities has been expressly raised by the Veteran and his attorney. If the benefits sought in connection with the claims remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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). _________________________________________________ JOHN Z. JONES 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).