Citation Nr: 18147468 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 09-36 577 DATE: November 6, 2018 REMANDED The appeal for an initial disability rating greater than 20 percent for diabetic retinopathy and greater than 60 percent subsequent to July 26, 2018, is remanded. The appeal for an initial compensable disability rating for tinea pedis and onychomycosis of both feet is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to October 1969. He was awarded the Purple Heart Medal, among other decorations for his service in Vietnam. This appeal has a lengthy procedural history. It arises from an October 2006 RO decision issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”) in Newark, New Jersey (hereinafter Agency of Original Jurisdiction (“AOJ”)). These appeals involving increased ratings for diabetic retinopathy and tinea pedis/onychomycosis were subsequently appealed to the Board of Veteran’s Appeals (Board). In October 2011, the Board remanded these issues for further evidentiary development. In a June 2013 Board decision, the Board granted the Veteran’s claim for an increased initial rating of his diabetic retinopathy, and assigned a 20 percent disability rating. However, the Board denied the Veteran’s claim for a compensable rating of his service-connected tinea pedis and onychomycosis. Thereafter, the Veteran appealed the June 2013 Board decision to the Court of Appeals for Veterans Claims (Court). In a March 2014 Joint Motion for Remand, the Court vacated and remanded the appeals for higher initial ratings for tinea pedis and onychomycosis and diabetic retinopathy back to the Board for further consideration. The Board, in a June 2014 decision, remanded these issues back to the AOJ for further development consistent with the Court’s JMR findings. The Board again remanded for completion of the requested development in April 2017. Unfortunately, the Board finds these actions were not completed and that an additional remand is required. Following the March 2014 Joint Motion for Remand, the Board remanded the Veteran’s claim for (1) entitlement to an initial compensable rating for tinea pedis and onychomycosis of the feet and (2) entitlement to an initial rating in excess of 20 percent disabling for diabetic retinopathy back to the AOJ for further development consistent with the Joint Motion. Specifically, in a June 2014 remand order, and again in April 2017, the Board requested the RO obtain the Veteran’s private treatment records from physician, J.S., M.D., in West Orange, New Jersey. However, the Board finds that these development actions were not taken, and the AOJ did not obtain the identified treatment records. As such, the Board finds an additional remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the Board finds the Veteran was not afforded a new VA examination as was requested in the June 2014 remand order. Specifically, the March 2014 CAVC JMR found the prior February 2012 VA examination to be inadequate for ratings purposes. The Court found this examination inadequate because the examiner failed to report/assess the Veteran’s uncorrected near sight vision. A review of the Veteran’s subsequent VA ocular examinations shows that both the August 2014, February 2016, and June 2018 VA eye examinations failed to assess and/or report the Veteran’s uncorrected near sight vision. As such, the Board finds an additional remand is required. Stegall, 11 Vet. App. at 271; See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). It is unclear why the VA has been unable to accomplish these two requests. Both requests are reasonable and consist of simple actions accomplished in the normal course of business multiple times a day at multiple VA offices. It is unfortunate that VA has failed to accomplish these two things, as the Veteran’s appeal has been extended for several years beyond what would be necessary because of this negligence. The matters are REMANDED for the following actions: 1. First, AOJ should obtain the necessary authorization from the Veteran to obtain the relevant outstanding medical records from J.S., M.D, in West Orange, New Jersey. All attempts to locate these records must be documented in the claims folder. 2. If the AOJ is unable to secure these records, the VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 3. The Veteran should be provided with an appropriate examination for the purpose of testing and recording his near and distant corrected and uncorrected vision. There should be four values recorded for each eye; near and distant uncorrected and corrected vision. The Board notes that prior examination did not contain visual acuity findings for uncorrected near vision. If the examiner finds that such findings are unobtainable or not warranted, he or she must explain why. 4. Prior to readjudicating this appeal, the RO must review the file to ensure that these two development actions have been accomplished. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter