Citation Nr: 1805028 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-18 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable disability rating for residuals of exotropia at distance and near, status post bilateral lateral rectus resection. REPRESENTATION Appellant represented by: James P. Coletta, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1994 to July 1994 and June 2002 to February 2003. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for residuals of exotropia at distance and near, status post bilateral lateral rectus resection, assigning a noncompensable evaluation effective December 2, 2005; and denied service connection for depression, atypical anxiety disorder with histrionic features, arthritis/tendonitis of the neck, left and right foot, left and right hip, left and right wrist, left and right hand, left and right knee, and left and right shoulder, and a back condition to include arthritis and tendonitis; and an October 2009 rating decision from the VA RO in Pittsburgh, Pennsylvania, which severed service connection for residuals of exotropia at distance and near, status post bilateral lateral rectus resection, effective January 1, 2010. In December 2006, the Veteran submitted a notice of disagreement (NOD) with the evaluation assigned for his eye disability and subsequently perfected this appeal in May 2007. In January 2010, he submitted an NOD with the severance of service connection and subsequently perfected that appeal in April 2010. His case is currently under the jurisdiction of the VA RO in Pittsburgh, Pennsylvania. In January 2011, the Board remanded the Veteran's claims of entitlement to restoration of service connection and a compensable initial evaluation for residuals of exotropia at distance and near, status post bilateral lateral rectus resection, to the RO to schedule a hearing before the Board. In March 2011, the Veteran presented sworn testimony during a Travel Board hearing in Pittsburgh, Pennsylvania, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In a September 2012 Board decision, it was determined that the severance of service connection was improper and restoration of service connection, effective January 1, 2010, was granted. The claim of entitlement to an initial compensable disability rating for residuals of exotropia at distance and near, status post bilateral lateral rectus resection, was remanded for a contemporaneous examination. The RO promulgated the restoration of service connection in a January 2013 rating decision. The requested VA eye examination was conducted in May 2013, and the claim for an increased rating was returned to the Board for further appellate consideration. In October 2016, the Board denied the Veteran's claim for an initial compensable disability rating for residuals of exotropia at distance and near, status post bilateral lateral rectus resection. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In a May 2017 Order, the Court granted the VA General Counsel's and Appellant's Joint Motion For Remand. The Board's decision was vacated and the Veteran's claim was remanded to the Board. The Order called for the claim to be remanded in that the VA examination of the eye was inadequate to adequately rate the Veteran's service-connected disorder. Specifically, the eye examiner did not discuss the Veteran's headaches. Additional examination was necessary that included discussion of all residuals. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND As noted in the Introduction, in September 2012, the Board remanded the issue on appeal to the AOJ for further development. The Board requested that the AOJ obtain a VA opinion that addressed the current severity of residuals of exotropia at distance and near, status post bilateral lateral rectus resection, to include specific discussion as to which of the Veteran's complaints, including headaches, were residuals of his exotropia. The Veteran was afforded a VA eye examination in May 2013. Visual acuity included distance, with correction in both eyes of 20/40. Near, with correction, was also 20/40 bilaterally. The examiner noted that the Veteran did not have a severe irregular astigmatism or diplopia. He did not have contraction of a visual field. While it was noted that the Veteran "experienced pain around the eyes as they had to work so hard in order to try and work together," there was no discussion as to the Veteran's complaints of headaches. Because the May 2013 VA examiner did not address this question, the opinion is deemed inadequate, thereby necessitating another remand. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, it is noted that the record now contains recent submissions in support of the Veteran's claim. Specifically, headache diaries from months in 2017 have been added to the record which should be considered on remand. Moreover, the AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records. If any records are unavailable, the AOJ should follow the provision in 38 C.F.R. § 3.159(e) (2017) regarding Federal records. 2. Provide the Veteran and/or his representative an additional opportunity to identify and provide authorization and consent to obtain additional available private treatment records related to his eye disorder. If any records are unavailable, the AOJ should follow the provision in 38 C.F.R. § 3.159(e) (2017) regarding private records. 3. Following completion of the above, the Veteran should be scheduled for an appropriate VA compensation examination in order to determine the current severity of his residuals of exotropia at distance and near, status post bilateral lateral rectus resection. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. All indicated studies should be completed. The examiner should specifically indicate which of the Veteran's complaints, including headaches, pain and loss of depth perception, are residuals of his exotropia. All residuals should be described in detail. 4. 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 claim of entitlement to a compensable initial rating for residuals of exotropia at distance and near, status post bilateral lateral rectus resection, should be readjudicated. Consideration should be given to all evidence of record, to include that added to the file as a result of this remand, as well as headache diaries added to the record in 2017. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2017). 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). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).