Citation Nr: 1341464 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-10 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for the diabetic proliferative retinopathy with hemorrhage. 2. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to August 1966, and from November 1966 to January 1975. The Veteran's increased rating claim comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for the diabetic proliferative retinopathy with hemorrhage and assigned a 30 percent disability rating, effective July 22, 2005. A May 2007 rating decision continued the 30 percent rating. In his March 2008 Substantive Appeal (on VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board. However, on an "Optional Appeal Hearings" form attached to his VA Form 9, the Veteran stated that he did not want a Board hearing. Accordingly, the Board sent the Veteran a Hearing Clarification letter in March 2012. Later that month, the Veteran responded, stating that he did not wish to appeal at a Board hearing. Thus, the Board finds that the Veteran's hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2013). In June 2012, the Board remanded the claims for further development. 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 Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). In May 2012, the Board remanded the Veteran's claims to obtain VA treatment records from the Tampa VA Medical Center (VAMC) since May 2003 and from the Orlando VAMC since March 2008. While a note to the file indicated that the records were located in CAPRI (Compensation and Pension Records Interchange), the records still have not been associated with the paper claims file or Virtual VA file. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of the claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The disability on appeal is rated based on impairment of visual fields, per 38 C.F.R. § 4.79, Diagnostic Code 6080. Impairment of visual fields must be tested using specific equipment and results must be transcribed onto a Goldmann Perimeter Chart, which must be included with the examination report. 38 C.F.R. § 4.77. On January 2013 VA examination, the examiner specifically noted that legal blindness should be ruled out by visual field testing Humphrey with Goldmann parameters as required by VA. A review of the Veteran's Virtual VA file reflects Humphrey Visual Field testing with Goldmann parameters was performed on the left eye in May 2013, however, the visual field charts have not been associated with the paper claims file or in Virtual VA. Additionally, the examiner did not report the extent of the remaining visual field in each of the eight 45 degree principal meridians. The Board notes that the Veteran underwent a VA ophthalmologic examination in April 2007, which included visual field testing using Goldmann kinetic perimetry and the visual field charts have been associated with the claims file. The examiner found that the Veteran's visual fields appeared impaired enough to prevent him from driving in the state of Florida. However, it does not appear that the examiner interpreted the meridians from the visual field charts and the Board finds that it would be helpful if the examiner who will be conducting the new examination provide an interpretation of the meridians for each eye. The evidence has shown that the Veteran's decreased visual acuity has been varied since its onset in July 2005. Earlier in the appeal period, the Veteran was reported as blind with light perception only in the left eye; however, vision in his left eye appeared to have improved and he later was reported as blind with light perception only in the right eye. On remand, the examiner should consider the complete record when addressing the severity of the Veteran's service-connected eye disabilities. Additionally, while the January 2013 VA examination described the severity of ptosis as causing disfigurement and gross distortion or asymmetry of one feature or paired set of features (eyes), the record is not clear as to whether or not ptosis has been caused or aggravated by the Veteran's service-connected diabetic retinopathy with hemorrhage. The claim for a TDIU is inextricably intertwined with the claim for an increased rating for diabetic proliferative retinopathy with hemorrhage. See Holland v. Brown, 6 Vet. App. 443, 446 (1994) (a TDIU claim premised on a specific disability, is inextricably intertwined with a claim for an increased rating for the same disability). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for eye disabilities since May 2003 from the Tampa VAMC and from March 2008 from the Orlando VAMC and from any other sufficiently identified VA facility. If any such records are unavailable, the Veteran should be notified of the identity of any records that are unavailable, the efforts VA has undertaken to obtain the records, and any further action that may be taken concerning her claims, and she should be notified that she may submit the records herself. All such notification must be documented in the claims file. If the Tampa and Orlando VAMC medical records are electronically available in CAPRI. Follow current procedures to review and identify VHA medical records pertinent to the disability claim electronically available in CAPRI. Upload to the Virtual VA eFolder the VHA medical records electronically available in CAPRI. 2. After the completion of number 1 above, arrange for the Veteran's claims file, including any relevant records in Virtual VA, and a copy of this remand to be reviewed by the VA examiner who previously examined the Veteran in May 2013. If the May 2013. VA examiner is unavailable, then forward the request to another appropriately qualified VA examiner. a) Ask the examiner to review the available evidence and examine the Veteran. The examiner should also review the multiple visual acuity findings noted on examinations in April 2007 and January 2013, as well as multiple on VA treatment records and consider the decreased visual acuity that has varied since its onset in July 2005, which included periods of being blind with light perception only in the left eye and later being blind with light perception in the right eye only. To the extent possible, the examiner must interpret these findings in terms of the applicable rating schedule for impairment of central visual acuity, and specifically, 38 C.F.R. § 4.84a , Diagnostic Codes 6061-6079 (2008). b) The examiner should interpret any graphical representations of visual field testing, to include the April 2007 and May 2013 charts. The results of such testing should be reported in terms of the applicable rating criteria for field vision.38 C.F.R. § 4.84a, Diagnostic Code 6080. In this regard, for VA rating purposes, the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. The total visual field is 500 degrees. The examiner must report the extent of the remaining visual field in each of the eight 45 degree principal meridians. If it is not possible or feasible to make these distinct findings, then the examiner should expressly indicate this and provide explanation. c) The examiner must opine on whether the Veteran's ptosis is at least as likely as not caused or aggravated by the Veteran's service-connected retinopathy with hemorrhage. d) The VA examiner must also state whether the Veteran's service-connected diabetic proliferative retinopathy with hemorrhage, alone or in concert with his other service-connected disabilities (he is currently service-connected for diabetic nephropathy with chronic renal insufficiency associated with diabetes mellitus, diabetes mellitus, peripheral neuropathy of the bilateral lower extremities associated with diabetes mellitus), renders him unable to secure or follow a substantially gainful occupation. In providing this opinion, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by any nonservice-connected disability 3. Then readjudicate the claims in light of the additional evidence. If any claim is not granted to the Veteran's satisfaction, send him an SSOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these remaining claims. 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.A. MARKEY 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).