Citation Nr: 1342903 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-33 779A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a compensable initial evaluation for bilateral hypertensive retinopathy, to include retinal macroaneurysm in the left eye status post laser. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran is seeking a compensable initial evaluation for his service-connected bilateral hypertensive retinopathy, to include retinal macroaneurysm in the left eye status post laser. At his September 2013 hearing before the Board, the Veteran testified that his service-connected bilateral hypertensive retinopathy, to include retinal macroaneurysm in the left eye status post laser, had worsened since his most recent eye examination was performed in December 2010. See Jandreau v. Nicholson, 492 F.3d. 1372, 1377 n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Specifically, he testified that this condition prevented him from working in his profession as a welder, metal fabricator, and plumber. He reported having severe problems with depth perception, which limited his ability to climb ladders and stairs. He also indicated that his vision problems caused him to have severe headaches. The Veteran further testified that he was receiving ongoing treatment for his bilateral hypertensive retinopathy. In an October 2013 statement, the Veteran reported that he had been receiving ongoing treatment from a VA physician at the Erie VA Optometry section. He also reported having been approved for and obtaining outside private medical care, including eye surgery to prevent bleeding, from Dr. L. and the Eck County Eye Clinic. Under these circumstances, the RO should obtain the Veteran's updated treatment records, and then schedule him for an updated eye examination. 38 C.F.R. § 3.159(c)(4)(i) (2013); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional evidence, to include VA and non-VA medical providers who have treated him for his bilateral hypertensive retinopathy, to include retinal macroaneurysm in the left eye status post laser, since December 2010, including records from the Erie VA Optometry section, the Eck County Eye Clinic, and Dr. L. Based on the Veteran's response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO should obtain all available treatment records concerning the Veteran's eye disability from the Erie VA Optometry section since December 2010. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must then be afforded an appropriate examination to determine the severity of his service-connected bilateral hypertensive retinopathy, to include retinal macroaneurysm in the left eye status post laser. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail, including full details concerning the Veteran's complaints of vision-related headaches. All indicated tests and studies must be performed. The examiner must also consider and describe the functional effects of the Veteran's bilateral hypertensive retinopathy on his occupation in the examination report. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. The Veteran must be notified that it is his responsibility to report for all scheduled examinations, and that the consequences for failure to report for an examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation in the claim file must show that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the issue of entitlement to an initial compensable evaluation for bilateral hypertensive retinopathy must be readjudicated. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).