Citation Nr: 1325538 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-28 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for extropia of the right eye. 2. Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from July 1976 to July 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from December 2008 and April 2009 rating decisions of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). In the December 2008 rating decision, the RO continued a 10 percent evaluation for extropia of the right eye. In the April 2009 rating decision, the RO denied service connection for a left eye disability. The Veteran testified at a November 2010 Travel Board hearing before the undersigned acting Veterans Law Judge, a transcript of which is on file. 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 Board finds that additional development is necessary prior to final adjudication of the claims on appeal. One of the matters the Board must address is which issue or issues are properly before it at this time. Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the Veteran. In essence, the following sequence is required: There must be a decision by the RO, the Veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the Veteran, and finally the Veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. As noted above, in an April 2009 rating decision, the RO denied service connection for a left eye disability. While the Veteran expressed disagreement with the April 2009 rating decision in a July 2009 correspondence, it appears that no subsequent statement of the case was ever issued with regard to this issue. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that this issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that this claim is not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board's actions regarding this issue are taken to fulfill the requirements of the Court in Manlincon. Regarding the Veteran's claim of entitlement to an evaluation in excess of 10 percent for extropia of the right eye, the Board observes that the most recent VA examination in October 2008 for this disability is nearly five years old. Additionally, at his November 2010 hearing, the Veteran testified that his right eye disability had worsened. The Court has held that where the Veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected right eye disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Following completion of the development set forth in paragraph 1, schedule the Veteran for a VA examination to determine the current severity of his extropia of the right eye disability. The examiner should identify and completely describe all current symptomatology. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Ask the examiner to discuss all findings in terms of the Schedule of Ratings - Eye, 38 C.F.R. § 4.79, Diagnostic Codes 6080, 6090, 6061-6079 (2012). The pertinent rating criteria must be provided to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. A discussion of the rationale underlying any opinions expressed must be included in the examination report, to include reference to pertinent evidence where appropriate. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655. 4. Issue a statement of the case to the Veteran addressing the matter of entitlement to service connection for a left eye disability, including citation to all relevant law and regulation pertinent to this claim. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. 4. Thereafter, readjudicate the claims. If any determination remains unfavorable to the Veteran, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). _________________________________________________ J. K. BARONE Acting 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).