Citation Nr: 1805746	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  13-34 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  What evaluation is warranted for residuals of a right eye injury, including intraorbital paresthesia?


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

Mary E. Rude, Counsel


INTRODUCTION

The Veteran served on active duty in the Army from May 2006 to September 2007, and received an honorable discharge.  The Veteran also served in the Navy from October 1985 to October 1989, but was discharged under other than honorable conditions.

These matters come before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  A Board hearing was held in March 2017.

At the March 2017 Board hearing, the Veteran expressed a desire to continue a claim of entitlement to service connection for a left shoulder disorder.  A claim of entitlement to service connection for a left shoulder condition was denied in an August 2010 rating decision, and the issue was not appealed.  The Veteran and his representative are advised that effective March 24, 2015, VA requires new claims to be submitted on a standard application form prescribed by the Secretary.  See 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017).  The matter is referred to the Agency of Original Jurisdiction (AOJ) as an intent to file a claim, and the Veteran should be notified of the requirements to reopen a claim.  See 38 C.F.R. § 3.155(b).

The issue of entitlement to an initial rating in excess of 10 percent for residuals of a right eye injury, including intraorbital paresthesia, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.




FINDINGS OF FACT

1.  At the March 2017 Board hearing, the Veteran withdrew his appeal concerning the claim of entitlement to service connection for a low back disability.

2.  The Veteran's residuals of a right eye injury have been manifested by an average contraction of the visual field of less than 60 degrees.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal regarding entitlement to service connection for a low back disability have been met.  38 U.S.C. § 7105(b)(2) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

2.  The criteria for an initial evaluation of 10 percent for residuals of a right eye injury, including intraorbital paresthesia, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.75, 4.76, 4.76a, 4.77, 4.79, Diagnostic Codes 6009, 6066, 6080 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal

A substantive appeal may be withdrawn in writing, except for appeals withdrawn on the record at a hearing, at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  Withdrawal may be made by the appellant or by an authorized representative.  38 C.F.R. § 20.204(c).

At the March 2017 Board hearing, the Veteran requested that his claim of entitlement to a service connection for a low back disability be withdrawn.  Therefore, there remains no allegation of errors of fact or law for appellate consideration with regards to this matter.  Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it must be dismissed.

Residuals of a Right Eye Injury

The Veteran has currently been assigned a noncompensable (0 percent) rating for his service-connected residuals of a right eye injury, including intraorbital paresthesia, under Diagnostic Code 6009, for an unhealed eye injury.  38 C.F.R. § 4.79, Diagnostic Code 6009 (2017).  This rating code allows evaluation of the disability on the basis of either incapacitating episodes or visual impairment, which includes impairment of visual acuity (without corrective lenses) and impairment of the visual field.  The Veteran has not asserted that he has ever had an incapacitating episode due to his eye injury, but he has indicated that he has decreased visual acuity and visual field due to the injury.

While the record does not presently include any visual acuity testing results which show uncorrected vision which is of sufficient severity to warrant a compensable rating, the Board finds that visual field testing at the Veteran's October 2009 VA examination does indicate that a 10 percent initial rating is warranted.

Loss of vision may be rated based on impairment of the field of vision under 38 C.F.R. § 4.79, Diagnostic Code 6080, measured using 38 C.F.R. § 4.76a, Table III.  The normal visual field extent at the eight principal meridians totals 500 degrees.  The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45 degree principal meridians.  The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in 38 C.F.R. § 4.76a, Table III.  The degrees lost are then added together to determine the total number of degrees lost, which are subtracted from 500.  The total remaining degrees of the visual field are then divided by eight to represent the average contraction for rating purposes.  38 C.F.R. § 4.76a.

A 10 percent rating is assigned for unilateral remaining field of 16 to 60 degrees; or unilateral loss of the superior, interior, nasal, or temporal halves of the visual field.  38 C.F.R. § 4.85, Diagnostic Code 6080.

When applying these regulations to the results of the Veteran's October 2009 VA examination, a 10 percent rating is warranted.  At the October 2009 VA examination, the Goldmann field test for the right eye showed the following approximate measurements for the eight principle meridians, recorded clockwise and starting at the temporal up direction: 40, 65, 79, 65, 60, 45, 43, 40.  These numbers total a remaining of field of 437, and when subtracted from a normal field of vision of 500, show a loss of visual field of 63.  When these numbers are added and divided by 8, the result is 55 degrees for the average concentric contraction.  Concentric contraction of 55 allows for the assignment of a 10 percent evaluation due to impairment of the visual field.  Id.  Entitlement to a 10 percent initial rating is therefore granted.

The issue of whether entitlement to an initial rating higher than 10 percent is warranted is the subject of the remand below.


ORDER

The appeal concerning a claim of entitlement to service connection for a low back disability is dismissed.

Entitlement to an initial 10 percent rating for a right eye injury, including intraorbital paresthesia, is granted.


REMAND

The Veteran last attended a VA eye examination in October 2009.  The Veteran asserted at his March 2017 Board hearing that his vision has continuously gotten worse since that time.  As the examination is now over 8 years old, it likely does not represent an accurate representation of the current severity of his condition.  See Caffrey v. Brown, 6 Vet. App. 377 (1994).  Additionally, the Veteran testified in 2017 that he has experienced a "narrowing" of his field of vision during the prior two years, and while the Veteran has submitted multiple records showing testing of his visual acuity in the years since his October 2009 VA examination, it does not appear that the Veteran has had any testing of his visual field since 2009.  The Board notes that this testing must be performed in compliance with the regulations set out under 38 C.F.R. § 4.77.

The Veteran also stated at the Board hearing that he has seen several private, outside treatment providers for his eye.  The Veteran should be afforded another opportunity to provide any additional, relevant records before further adjudication.

Accordingly, the case is REMANDED for the following action:

1. Send to the Veteran a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional, more recent relevant private medical records of treatment related to his eye.

2. Obtain all outstanding, pertinent VA treatment records from the VA Puget Sound Health Care System, for both the American Lake and Seattle Divisions.  If any records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.

3. Schedule the Veteran for a VA eye examination to address the current severity of his right eye disability.  The examiner must specify in the report that all VBMS records have been reviewed.  Any indicated evaluations or studies should be conducted.  

The examiner should perform complete visual field and visual acuity testing, and identify all manifestations of the disorder, including any pain or numbness, and discuss the functional limitations caused by such symptoms.

A complete and fully explanatory rationale must be provided for any opinion offered.  If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

4. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for the examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

5. Thereafter, readjudicate the issue.  If any benefit sought is not granted, the appellant must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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).

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 2014).




______________________________________________

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs