Citation Nr: 1332511 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-27 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for traumatic maculopathy of the left eye, with atrophy and gliosis of the papillomacular bundle and disturbance of the underlying retinal pigment epithelium (left eye disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from December 1970 to December 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of his appeal, the Veteran raised a new claim for service connection for right eye pain. See July 2009 substantive appeal. The agency of original jurisdiction (AOJ) undertook some development on this claim, including sending the Veteran a requisite duty to assist letter in July 2009, but no further action was taken. Thus, the matter of entitlement to service connection for right eye pain is referred to the AOJ for appropriate consideration and adjudication. 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 his December 2008 notice of disagreement, the Veteran reported having watery eyes and eye pain. He said his eye pressure was up and medication was not working. In his July 2009 substantive appeal, the Veteran reiterated that he experienced left eye pain. The Board notes that, in December 2008, the regulations regarding evaluation of eye disabilities were revised. 73 Fed. Reg. 66543 (Nov. 10, 2008). The new regulations only apply to applications for benefits received by VA on or after December 10, 2008. Because the Veteran's claim was received in March 2008, only the old regulations apply. However, the July 2009 statement of the case only provided the Veteran with the rating criteria effective December 2008, but not the criteria effective prior to that date, that are applicable to his claim. The Veteran's service-connected left eye disability has been rated under the provisions of 38 C.F.R. § 4.84a, Diagnostic Code 6006-6079 (in effect prior to December 10, 2008). Diagnostic Code 6006 evaluates retinitis. Evaluations for impairment of central visual acuity range from noncompensable to 100 percent. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079. Under Diagnostic Code 6079, a noncompensable evaluation is warranted where vision is 20/40 in both eyes. A 10 percent evaluation is warranted where vision is 20/50, 20/70 or 20/100 in one eye and 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6078 and 6079 (2008). A 10 percent evaluation is also warranted where vision is 20/50 in both eyes. Id. The evaluations continue to increase for additional impairment of central visual acuity, that is to be measured based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. §§ 4.75, 4.83a, and 4.84a, Table V. Here, the record reflects that, in conjunction with his claim, the Veteran was afforded a VA examination in May 2008, more than five years ago. Addenda were provided in August 2008 (Humphrey Visual Field) and October 2008 (Goldmann Visual Field). In the interest of due process and fairness, the Board is of the opinion that he should be afforded a new VA examination to determine the current severity and all manifestations of his service-connected left eye disability. See e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995). Further, in a signed statement received by the Board in June 2011, the Veteran reported that, as of a May 25, 2011 VA medical appointment at the VA medical center (VAMC) in West Palm Beach, Florida, his left eye pressure was "so severe" that surgery may be required. However, there are no VA treatment records in the claims file dated since August 2005. Thus, there appear to be some pertinent VA medical records that may affect the disposition of the instant claim that are not yet associated with the claim file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records regarding the Veteran's treatment at the VAMC in West Palm Beach, for the period from August 2005 to the present; and from any additional VA and non-VA medical provider(s) identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(e) (2013). 2. Schedule the Veteran for a VA ophthalmologic examination, preferably performed by a physician, to determine the current severity and all manifestations of his service-connected traumatic maculopathy of the left eye, with atrophy and gliosis of the papillomacular bundle and disturbance of the underlying retinal pigment epithelium. Prior to examining the Veteran, the examiner should review the entire claims file, including a complete copy of this remand. All indicated tests and studies should be performed and all clinical findings should be reported in detail. a. The examiner is requested to address the question as to whether the Veteran has decreased left eye vision associated with the traumatic maculopathy of the left eye, with atrophy and gliosis of the papillomacular bundle and disturbance of the underlying retinal pigment epithelium. b. The examiner is also requested to note the extent to which any impairment of central visual acuity is attributable to the service-connected left eye disability. c. The examiner is further requested to address the Veteran's complaints of left and right eye pain associated with his left eye disability. d. A complete rationale for all opinions should be provided. 3. Readjudicate the claim for a rating in excess of 10 percent for traumatic maculopathy of the left eye, with atrophy and gliosis of the papillomacular bundle and disturbance of the underlying retinal pigment epithelium. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case that includes the criteria for rating eye disabilities effective prior to December 10, 2008, and provided an appropriate opportunity to respond. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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. 2013). _________________________________________________ THOMAS O'SHAY 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) (2013).