Citation Nr: 1753063 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-38 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bilateral eye disability. 2. Entitlement to an initial rating in excess of 10 percent for a duodenal ulcer. 3. Entitlement to a compensable initial rating for hepatitis C. REPRESENTATION Appellant represented by: South Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1977 and from June 1977 to June 1981. He also had subsequent service with the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009 and September 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). An April 2016 rating decision granted service connection for hepatitis C and assigned a noncompensable evaluation. The Veteran has filed a notice of disagreement with the evaluation assigned. In February 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in April 2016, when they were remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board regrets the additional delay, but finds that further development is necessary prior to appellate review. In pertinent part, the April 2016 remand directed that the AOJ request through official sources verification regarding whether the Veteran was on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) on May 27, 1998 and June 1, 1998. On remand, the RO requested the Veteran's service treatment records but did not request verification of the Veteran's ACDUTRA and INACDUTRA status for the specified dates. While the service records received in June 2016 contain an Army National Guard Retirement Points Statement Supplement Detailed Report for the period from October 1, 2005 to August 6, 2006 documenting the Veteran's ACDUTRA and INACDUTRA dates, it does not contain a similar report or leave and earning statements indicating whether the Veteran was on ACDUTRA and INACDUTRA on May 27, 1998 and June 1, 1998. Accordingly, on remand an attempt to verify these periods is warranted. The April 2016 remand also directed that the Veteran be provided a VA eye conditions examination to determine the nature and relationship to service, if any, of any eye condition. The Veteran was afforded a VA examination in February 2017. Nevertheless, the examiner did not acknowledge or address all the eye diagnoses present during the pendency of the appeal, including allergic conjunctivitis, hyperplastic chorioretinal scar with atrophy, corneal arcus, and keratoconjunctivitis sicca. Accordingly, an addendum opinion is warranted to address these diagnoses. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There are also outstanding VA treatment records. A March 30, 2017 VA treatment record indicates that the Veteran had a follow up appointment scheduled on May 11, 2017. Nevertheless, treatment records subsequent to March 30, 2017 have not been associated with the claims file. Additionally, VA treatment records from December 2, 2009, August 14, 2012, July 31, 2013, December 17, 2015, January 20, 2016, April 4, 2016, and April 6, 2016 indicate that fee basis outpatient treatment records, including an abdominal computed tomography (CT) scan, a VA esophagogastroduodenoscopy (EGD) report, and an ophthalmology surgery note, had been scanned into VistA Imaging. However, the referenced records have not been associated with the claims file. Accordingly, on remand all outstanding VA treatment records must be associated with the claims file. Finally, in January 2017 the Veteran filed a timely notice of disagreement (NOD) with the evaluation assigned for his hepatitis C in the April 2016 rating decision. To date, the AOJ has not issued a statement of the case (SOC) addressing this issue or otherwise acknowledged the NOD. Accordingly, remand of this claim for issuance of an SOC is warranted. See Manlincon v. West, 12 Vet. App. 238 (1999). After the AOJ has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records from March 30, 2017 to present, as well as the fee basis treatment records that were referenced in the December 2, 2009, August 14, 2012, July 31, 2013, December 17, 2015, January 20, 2016, April 4, 2016, and April 6, 2016 VA treatment records, and associate them with the claims file. If the requested records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 2. To the extent possible, request through official sources verification of whether the Veteran was on ACDUTRA or INACDUTRA on May 27, 1998 and June 1, 1998. Reports of retirement points are not helpful in this regards; the actual dates of the Veteran's ACDUTRA and INACDUTRA - such as those that were provided in the Army National Guard Retirement Points Statement Supplement Detailed Report for the period from October 1, 2005 to August 6, 2006 or leave and earning statements for the requested periods are needed. All efforts to obtain this information should be fully documented, and the Veteran notified if such verification cannot be accomplished. 3. Return the claims file to the February 2017 VA eye conditions examiner to obtain an addendum opinion. If that examiner is unavailable, the claims file should be forwarded to an appropriate substitute. Following review of the claims file, the clinician should provide indicate whether any eye disability, other than refractive errors, were at least as likely as not (50 percent probability or greater) incurred in or otherwise related to the Veteran's military service, to include his July 1980 active duty treatment report of bilateral eye pain and his May 1998 and June 1998 eye injuries during his National Guard service. In so opining, the clinician should address the diagnoses of record, including but not limited to allergic conjunctivitis, hyperplastic chorioretinal scar with atrophy, corneal arcus, and keratoconjunctivitis sicca. A rationale should be provided for any opinion expressed. 4. After undertaking the development above, the Veteran's claims should be readjudicated. If the benefits sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period to respond thereto before the case is returned to the Board, if in order. 5. Issue a statement of the case on the claim for entitlement to an initial compensable rating for hepatitis C so that the Veteran and his representative may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if a timely substantive appeal is filed. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).