Citation Nr: 1806391 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-40 993A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for service-connected right eye condition, status post-surgery. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1968. This claim comes before the Board of Veterans' Appeal (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In an April 2008 rating decision, the RO granted service connection and assigned an initial 30 percent rating for aphakia, right eye, with vitreous hemorrhage secondary to cortical bleed, diabetic cataracts, myopia and hypertension, effective June 20, 2007. In a September 2009 RO rating decision the Veteran was awarded a temporary 100 percent rating from August 15, 2007 to July 1, 2008 due to surgical treatment necessitating convalescence. From July 1, 2008 the Veteran was assigned a rating of 30 percent disabling. The Veteran initially requested a Board hearing, but by a statement dated October 2015, he withdrew his hearing request. See 38 C.F.R. § 20.704(e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is currently rated 30 percent disabled for blindness of the right eye. The Veteran contends that he should be rated higher due to the complete blindness in this eye. Only the Veteran's right eye is service-connected, rated under 38 C.F.R. § 4.79, Diagnostic Code 6029. Generally in these circumstances a thirty percent disability is the highest possible rating for visual impairment in one eye, if the other eye is not service-connected. 38 C.F.R. § 4.75(d). However, the VA examinations of record demonstrate that the Veteran's left eye also has limitation of visual acuity. Under 38 C.F.R. § 3.383(a) compensation is payable for the combinations of service-connected and nonservice-connected disabilities, as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the Veteran's own willful misconduct. With respect to the eyes, special consideration applies when there is impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of nonservice-connected disability, and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. 38 C.F.R. § 3.383(a)(1). The Veteran's most recent VA examination demonstrated visual acuity of 20/100. In an Informal Hearing Presentation, the Veteran's representative stated that if the Board could not grant the Veteran's claim then the Veteran would request "a remand for a new examination as the one of record is too old to adequately evaluate the disability." Therefore, Board finds that additional development is warranted to determine the current nature, extent, severity and manifestations of these disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Here, VA is required to afford the Veteran a contemporaneous VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Specifically the Board is seeking to determine whether the Veteran's non-service connected left eye has reached a level of visual impairment severe enough to qualify for the special consideration for paired organs under 38 C.F.R. § 3.383(a). Since the claims file is being returned, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). 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). Expedited handling is requested.) 1. Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran. If no medical records are available, this should be noted in the Veteran's claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his service-connected right eye condition and any diagnosed non-service-connected left eye condition. Copies of all pertinent records from the Veteran's eFolder must be made available to the examiner. All indicated tests should be performed. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the Veteran's the right and left eye conditions. The appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. 3. After conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.E. LARKIN 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).