Citation Nr: 1329427 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-09 639A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for right eye glaucoma, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 1980, from November 1990 to May 1991, and from January to July 2003. This case comes to the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In November 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The issues of entitlement to service connection for left eye glaucoma and entitlement to a temporary total evaluation based on the service-connected right eye glaucoma requiring a period of convalescence after surgery on June 13, 2007, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013); 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 remanded this case in February 2012, in part, so that the Veteran could be provided with a VA ophthalmology examination addressing the present severity of his service- connected right eye glaucoma. The Board also noted that the issue of entitlement to a total temporary rating based on a period of convalescence for right eye glaucoma surgery from June 13, 2007 had been raised by the record via July 2007 and November 2007 statements from the Veteran; and that the issue of service connection for left eye glaucoma had been raised by the Veteran's February 2008 statement. The Board found that these two issues were inextricably intertwined with the issue of entitlement to an increased rating for right eye glaucoma and therefore, must first be addressed by the RO. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thereafter, review of the claims file and Virtual VA records does not establish that the RO has conducted any development with respect to the service connection claim for left eye glaucoma and the claim for a total temporary rating based on a period of convalescence for right eye glaucoma surgery from June 13, 2007. Therefore, the Board once again highlights that these issues must be adjudicated before the Board can properly address the increased rating claim for right eye glaucoma on appeal. With respect to the remand directive to provide for a VA examination addressing the present severity of the right eye glaucoma, the record shows that the Veteran was scheduled for this examination in March 2012 but that he did not show up for the examination. The Veteran submitted a statement in May 2013 but did not offer any reason for why he missed the examination. Unfortunately, however, the notice letter that was sent to the Veteran notifying him of the date and time of his examination is not of record. There is a note from the AMC requesting a hard copy of the examination notice letter but there is no subsequent copy provided in the claims file or the Virtual VA records. Therefore, the Board cannot verify that the notice letter was sent to the Veteran's last known address. For this reason, either a copy of the notice letter must be provided; or the Veteran must be rescheduled for another VA ophthalmology examination. If another examination is scheduled, a copy of the letter notifying the Veteran of the date and time of the examination must be provided in the claims file or scanned into Virtual VA records. The RO also should obtain records from the Philadelphia VA Medical Center from March 2012 to present for his glaucoma. 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 and associate with the claims file copies of all relevant clinical records from the Philadelphia VA Medical Center from March 2012 to the present. 2. Associate with the claims file or scan into Virtual VA records a copy of the letter notifying the Veteran of the date and time of the March 2012 VA examination. 3. If a copy of the notice letter is unavailable, schedule the Veteran for another VA eye examination in order to determine the current extent of his service-connected right eye glaucoma. The letter notifying the Veteran of the date and time of the examination must be included in the claims file or scanned into Virtual VA records. All indicated tests must be conducted, to include visual acuity testing and field-of-vision testing. The appellant's claims folder must be made available to, and reviewed by, the examiner prior to the examination. The report of examination should include a detailed description of all clinical manifestations of the right eye glaucoma. 4. Thereafter, the AMC should undertake any development regarding the issues of entitlement to service connection for left eye glaucoma and entitlement to a temporary total evaluation based on the service-connected right eye glaucoma requiring a period of convalescence after surgery on June 13, 2007; and must adjudicate these issues. Thereafter, if the Veteran files a timely notice of disagreement to any denial, the AMC must issue a statement of the case addressing any appealed issue. The claimant is hereby informed that the Board may only exercise appellate jurisdiction over this matter if he perfects an appeal in a timely manner. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2013). 5. The AMC should then readjudicate the remaining claim on appeal in light of all of the evidence of record and with consideration of 38 C.F.R. § 3.321(b) (2013). If the issue remains denied, the Veteran should be provided with a supplemental statement of the case, with a copy to his representative, as to the issue on appeal, and afforded a reasonable period of time within which 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). _________________________________________________ D. C. Spickler 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).