Citation Nr: 20021553 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-15 612 DATE: March 26, 2020 REMANDED Entitlement to a compensable rating for residual shell fragment scars of the left leg is remanded. Entitlement to a compensable rating for nose fracture residuals is remanded. Entitlement to a rating in excess of 10 percent for left eye dacryocystitis is remanded. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating), for the period prior to December 18, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to April 1970. The Veteran died in August 2014, at which time he had a pending appeal for the issues set forth on this title page. In October 2018, the Veteran’s surviving spouse, who is the appellant, was substituted as the claimant for all of the claims that were pending at the date of the Veteran’s death. In September 2018 and in April 2019, the current claims were remanded by other Veterans Law Judges for additional development. The case has now been assigned to the undersigned Veterans Law Judge. The appellant’s prior representative, a private attorney, withdrew representation through written statements sent to VA which were received in April 2019 and May 2019, prior to the recertification of the case to the Board in September 2019. See 38 C.F.R. § 20.608(a) (2018). In November 2019, the Board sent the appellant a letter requesting clarification with regard to whether she wished to appoint a new representative; however, she did not respond to this clarification letter. As the record does not contain any current executed form (either a VA Form 21-22 or a VA Form 21-22a) appointing a valid representative in these matters, the Board proceeds with the understanding that the appellant is appearing pro se. The appellant is hereby advised that if she wishes to have representation for these claims or any future claims, she will need to submit a new VA Form 21-22 or a VA Form 21-22a for her chosen representative. 1. Entitlement to a compensable rating for residual shell fragment scars of the left leg. 2. Entitlement to a compensable rating for nose fracture residuals. 3. Entitlement to a rating in excess of 10 percent for left eye dacryocystitis. 4. Entitlement to a rating in excess of 50 percent for PTSD. 5. Entitlement to a TDIU rating, for the period prior to December 18, 2013. As an initial matter, the Board notes that a 100 percent schedular rating was in effect for the Veteran beginning on December 18, 2013 until the date of his death on August 30, 2014 and that he was in receipt of special monthly compensation under 38 U.S.C. § 1114(s) for that time period as well. Therefore, the current appeal period for entitlement to a TDIU rating consists of only the period prior to December 18, 2013; as of that date, such claim became moot and is not before the Board. The Board’s April 2019 remand specifically instructed the Agency of Original Jurisdiction (AOJ) to obtain all records from the Social Security Administration (SSA) for the Veteran, in light of the evidence of record showing that he was in receipt of SSA disability benefits during his lifetime beginning in 2004. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The Board also instructed that if his SSA records were unavailable, then the claims file was to be clearly documented to that effect, and the claimant [erroneously identified in the remand instructions as “the Veteran”] was to be notified in accordance with 38 C.F.R. § 3.159(e). In July 2019, the AOJ sent a request to the SSA for all records pertaining to the Veteran. Thereafter, the SSA provided a negative reply in July 2019, indicating that “There are no medical records” and that “further efforts to obtain them will be futile.” The unavailability of such records was clearly documented in the claims file (by way of the SSA’s negative reply being added to the claims file); however, the claimant was not notified of the unavailability of such records in accordance with § 3.159(e). On remand, corrective action must be taken in order to comply with 38 C.F.R. § 3.159(e). See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Additionally, the Board notes that, prior to his death, the Veteran underwent a VA eye examination in January 2013, and it was documented in that examination report that he underwent contemporaneous Goldmann visual field testing which had revealed a visual field defect. On remand, the charts for this Goldmann visual field testing must be obtained and associated with the claims file.   The matters are REMANDED for the following actions: 1. Notify the appellant of the unavailability of the Veteran’s SSA records (including all medical records pertaining to his award of disability benefits), in accordance with 38 C.F.R. § 3.159(e). 2. Obtain any outstanding VA treatment records for the Veteran prior to his death, including the Goldmann visual field charts for the visual field testing conducted at his January 2013 VA eye examination. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303 (2018).