Citation Nr: 1753915	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  10-48 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for macular pucker of the right eye prior to December 17, 2016 and in excess of 40 percent thereafter.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Polly Johnson, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1975 to May 1981 and from June 1983 to July 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  That rating decision continued a 10 percent rating for the Veteran's right eye disability.  

A July 2017 rating decision increased the rating for the Veteran's right eye disability to 40 percent, effective December 17, 2016. 

In April 2014 and in September 2016, the Board remanded the case for additional development and it now returns for appellate review.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND


In April 2014, the Board remanded the appeal, in part, to request that the Veteran provide information as to the frequency and duration of right eye-flare-up.  In addition, he was to be asked to describe any causes, or precipitating factors, for flare-ups.  Thereafter, the AOJ was directed to afford the Veteran a VA examination during a flare-up if he desired and if feasible.  

A September 2016 Board remand directed that the Veteran be afforded a VA examination to be conducted, if possible, during a flare-up.  Even if the examination was not conducted during a flare-up, the examiner was requested to describe any additional functional impairment during a flare-up, based on the Veteran's description of such.  A November 2016 request for examination specifically noted that the examiner should evaluate the Veteran's eye disability in the context of a flare-up.

The Veteran underwent a VA examination in December 2016 with additional testing conducted in March 2017.  The examiner did not address flare-ups, nor ask the Veteran whether he experienced flare-ups.  Thus, no measure of additional functional impairment as a result of flare-ups was noted.  

The Board finds that there has not been substantial compliance with its prior remand directives, such that an additional remand is required.  See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders).

Accordingly, the Board finds that the Veteran should undergo another examination. 

Accordingly, the case is REMANDED for the following action:

1. Afford the Veteran a VA examination with the same examiner, if still available, or if not, another clinician with appropriate expertise, to address the current severity of the Veteran's right eye disability, to be conducted, if possible, during a flare-up.  The examiner should describe any additional functional impairment during a flare-up, either as a result of testing during such a flare-up or based upon the Veteran's description of a flare-up.  

The examination report must include a complete rationale for all opinions expressed.

2.  If the benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).



_________________________________________________
Mark D. Hindin 
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).