Citation Nr: 1817232 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-29 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable disability rating for service-connected iritis. ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran had active military service from March 1980 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO in Philadelphia, Pennsylvania now has jurisdiction over the matter. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2015. A copy of the transcript is of record. The case was most recently before the Board in August 2017 and remanded for further development. Due to a failure to comply with the previous remand instructions, the claim must be remanded again before a final decision can be made. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The August 2017 remand instructions requested that the VA examiner provide an opinion specifically addressing "whether the Veteran has had any impairment of visual acuity, pain, rest-requirements, or episodic incapacity due to his service-connected iritis," which is directly based on the pre-December 2008 rating criteria. Instead, the examiner provided a medical opinion using the current definition of incapacitating episodes of prescribed bedrest, which was not in effect when the Veteran submitted his claim in May 2008. On remand a new VA medical opinion should be obtained to identify whether the Veteran's disability met the criteria in effect when his claim was filed. See Stegall v. West, 11 Vet. App. 268 (1998). The August 2017 remand instructions also directed the RO to adjudicate the Veteran's claim using the regulations in effect when the Veteran filed his May 2008 claim. The Board noted in the remand that the regulations that the rating criteria changed in December 2008, after the Veteran filed his claim, and that the Veteran's claim should be rated under the pre-December 2008 rating criteria. However, the January 2018 SSOC issued to the Veteran used the incorrect rating criteria. The correct rating criteria from the January 2008 regulations, was published under 38 C.F.R. § 4.84a (2008) which was removed in December 2008. Although, the RO correctly used the January 2008 definition provided under 38 C.F.R. § 4.79, the SSOC then lists the current rating criteria for diseases of the eye, than the criteria listed under 38 C.F.R. § 4.84a (2008). On remand, the RO should adjudicate the Veteran's claim using the pre-December 2008 version of 38 C.F.R. § 4.84a to determine which criteria to assign the Veterans disability rating. Accordingly, the case is REMANDED for the following action: 1. Contact the VA examiner who conducted the August 2017 VA examination, or another appropriate examiner, if unavailable, to obtain a supplemental medical opinion to determine the symptomatology and the current severity of his service-connected iritis. The Veteran's file to include a copy of this remand should be available for the examiner's review. If the examiner believes it is necessary to complete the opinion, schedule the Veteran for any examination and testing as appropriate The appropriate Disability Benefits Questionnaire (DBQ) pertaining to the rating criteria prior to December 10, 2008 for eye conditions should be filled out, if possible. The examiner should specifically address whether the Veteran has had any impairment of visual acuity, pain, rest-requirements, or episodic incapacity due to his service-connected iritis. The examiner is advised that the term "episodic incapacity" as used in the paragraph above, does not require bed rest prescribed by a physician and is a different standard than the current one used for incapacitating episodes as defined in 38 C.F.R. § 4.71a, Diagnostic Code 5243 (Note: 1). A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner is to 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). 2. Readjudicate the issue on appeal. In adjudicating whether the Veteran is entitled to an initial compensable rating for iritis, the RO must consider the rating criteria in effect prior to December 10, 2008. Under 38 C.F.R. § 4.84a. Specifically; Diseases of the Eye Rating 6000 Uveitis 6001 Keratitis 6002 Scleritis 6003 Iritis 6004 Cyclitis 6005 Choroiditis 6006 Retinitis 6007 Hemorrhage, intra-ocular, recent 6008 Retina, detachment of 6009 Eye, injury of, unhealed: The above disabilities, in chronic form, are to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. Minimum rating during active pathology 10 percent. Id. 3. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). _________________________________________________ M. E. LARKIN 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).