Citation Nr: 1327267 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-26 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected ischemic heart disease (hereinafter "IHD"), prior to June 12, 2008; and to an evaluation in excess of 10 percent thereafter. 2. Entitlement to an initial compensable evaluation for service-connected glaucoma, prior to June 12, 2008; and to an evaluation in excess of 10 percent thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970. This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a September 2006 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in New Orleans, Louisiana. This decision granted service connection for glaucoma and assigned an initial noncompensable rating, effective August 22, 2000; and granted service connection for IHD and assigned an initial noncompensable rating, effective May 27, 2005. In an April 2009 rating action, the RO granted a staged increased rating of 10 percent for glaucoma, effective June 12, 2008; and granted a staged rating of 30 percent for IHD, effective June 12, 2008. In a subsequent rating action dated in February 2012, the RO granted a 10 percent rating for IHD, effective May 27, 2005, and a 60 percent rating, effective June 12, 2008. As these increased ratings generally do not represent a grant of the maximum benefits allowed by law, these claims remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2012, the Board remanded the claims to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC, for additional development of the record, to include scheduling a Board videoconference hearing. In this remand, the Board also sought clarification of a discrepancy in the code sheet of the April 2009 rating decision pertaining to the grant of 10 percent for the service-connected glaucoma. In October 2012, the RO sent the Veteran a letter, which indicated that the April 2009 rating decision and notification advised the Veteran that a 10 percent service-connected disability evaluation was assigned for glaucoma, while the rating code sheet indicated that a 0 percent service-connected evaluation was assigned. The RO determined that the 0 percent evaluation indicated by the rating code sheet was correct and noted that, as was advised in a February 2012 supplemental statement of the case (hereinafter "SSOC"), service connection for glaucoma was established on the basis of aggravation by service-connected diabetes, meaning that the disability evaluation warranted for glaucoma prior to aggravation by diabetes must be deducted from the post-aggravation disability evaluation. As the Veteran's pre-aggravation and post-aggravation disability evaluations for glaucoma were both consistent with a 10 percent disability evaluation, a 0 percent service-connected disability evaluation was deemed warranted for the glaucoma. The Board notes that the Veteran initially testified at a videoconference hearing before a Veterans Law Judge (hereinafter "VLJ") in January 2013. However, in a February 2013 letter to the Veteran, the Board informed him that a written transcript could not be produced of the proceeding, and provided him with an opportunity to testify at another hearing. The Veteran testified at a videoconference hearing before the undersigned VLJ in May 2013. A transcript of that proceeding is of record. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed Virtual VA to ensure a complete assessment of the evidence. No additional documents pertinent to the present appeal were revealed. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran last underwent VA examination to evaluate the severity of his service-connected glaucoma and IHD disabilities in November 2008 and December 2008, respectively. In a March 2012 VA Form 646, Statement of Accredited Representation in Appealed Case, the Veteran's representative reported that the Veteran sought a 10 percent evaluation for his glaucoma, and to be reevaluated for his IHD. A Veteran is competent to provide an opinion that his disability has worsened. 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). As the Veteran was last examined in November 2008 and December 2008, and in light of statements indicating worsening symptoms, received in March 2012, contemporaneous VA examinations are necessary to determine the current severity of his glaucoma and IHD disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Also, the Veteran has testified that he receives ongoing treatment at the New Orleans, Louisiana VA Medical Center (hereinafter "VAMC"), and the Virtual VA eFolder indicates that VA treatment records dated to February 2012 have been associated with the record. Any additional records should be obtained and associated with the claims folder. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must obtain and associate with the claims folder (including the Virtual VA) any outstanding VA treatment records dated to the present, to include those from the New Orleans VAMC. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO/AMC must schedule the Veteran for an appropriate examination to determine the current severity of his service-connected glaucoma. The claims folder, and any pertinent evidence in Virtual VA, must be made available to the examiner in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all appropriate protocols for rating disabilities of the eye-including submission of a Goldman chart. The examiner should obtain a detailed clinical history from the Veteran. All pertinent eye pathology found on examination should be noted in the report of the evaluation. The examiner should also provide an opinion concerning the impact of the disability on the Veteran's ability to work. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The RO/AMC must also schedule the Veteran for an appropriate examination to determine the current severity of his service-connected IHD. The claims folder, and any pertinent evidence in Virtual VA, must be made available to the examiner in conjunction with the examination. Any indicated studies should be performed, to include electrocardiogram, echocardiogram, and/or X-ray, and the examination report should comply with all appropriate protocols for rating disabilities of the heart-including submission of metabolic equivalent (hereinafter "MET") test results. The examiner should obtain a detailed clinical history from the Veteran. All pertinent heart pathology found on examination should be noted in the report of the evaluation. The examiner should also provide an opinion concerning the impact of the disability on the Veteran's ability to work. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the requested action, and any additional notification and/or development warranted by the record, the RO/AMC should readjudicate the remanded claims for increased staged disability ratings. If any benefit sought on appeal remains denied, the RO/AMC should furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond before the case is returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ K. PARAKKAL 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).