Citation Nr: 1340203 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-20 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating for the residuals of a right eye injury, currently evaluated as noncompensable prior to January 18, 2010, and 10 percent disabling thereafter. 2. Entitlement to service connection for residuals of a traumatic brain injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, K.T., and M.R.S. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from December 1982 to November 1986. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, continued a noncompensable rating for the Veteran's service-connected residuals of a right eye injury. In an April 2010 rating decision, the RO granted a higher rating for residuals of a right eye injury; however, because the Veteran is presumed to seek the maximum available benefits, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2010, the Veteran, his spouse (K.T.), and his sister (M.R.S.) testified at a Board hearing before the undersigned; a transcript of the hearing is of record. In December 2011, the Board remanded the claim for additional development. The case has since been returned to the Board for appellate review. The Veteran's paper claims file and electronic folder in Virtual VA and the Veterans Benefits Management System (VBMS) have been reviewed in conjunction with the disposition of the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Board's review of the claims file reveals that further action is warranted. Another VA eye examination is necessary because the most recent February 2012 examination report did not include field of vision testing on a standard Goldmann Perimeter Chart. See 38 C.F.R. § 4.77(a) (2013). In addition, VA's regulations pertaining to eye disabilities were amended during the course of the appeal; however, the Veteran has not been provided notice of these amendments. See 73 Fed. Reg. 66,543 - 66,554 (Dec. 10, 2008). The record reflects that the Veteran receives ongoing treatment from the Waco VA Medical Center (VAMC). The electronic folder in Virtual VA currently contains records dated through May 2013. On remand, any outstanding VA treatment records should be obtained. In a February 2012 rating decision, the RO denied entitlement to service connection for residuals of a traumatic brain injury; the Veteran submitted a timely notice of disagreement in April 2012. A review of the claims file and the Veteran's electronic folder does not reflect that a Statement of the Case has been issued. Therefore, this issue must be remanded to the AOJ for issuance of a Statement of the Case. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following actions: 1. Issue a Statement of the Case to the Veteran addressing the claim of entitlement to service connection for residuals of a traumatic brain injury. The Veteran is hereby advised that the Board will not exercise appellate jurisdiction over this issue in the absence of a timely substantive appeal. 2. Send a letter to the Veteran notifying him of the amendments to VA's regulations pertaining to eye disabilities, which became effective December 10, 2008. See 73 Fed. Reg. 66,543-66,554 (Dec. 10, 2008). 3. Obtain all VA treatment records from the Waco VAMC dated since May 2013. If any records are not available, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159(e). 4. After the development outlined in Items (2) and (3) is completed, schedule the Veteran for an examination to determine the current nature and severity of his service-connected residuals of a right eye injury. All indicated tests and studies should be conducted. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA or VBMS eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. A report of the examination should be prepared and associated with the Veteran's VA claims file. A Goldmann Perimeter Chart must be included with the examination report. The examiner should set forth in the examination report for the degree of remaining visual field in the eyes, in each of the following eight principal meridians: temporally, down temporally, down, down nasally, nasally, up nasally, up, and up temporally. Uncorrected and corrected central visual acuity for distance and near vision of the eyes should also be provided. 5. Review the claims folder and the ordered VA examination to ensure that the Remand directives herein have been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. 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). The claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). _________________________________________________ K. A. KENNERLY 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).