Citation Nr: 0003040 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97-07 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable evaluation for defective vision of the left eye due to traumatic retinal detachment and traumatic glaucoma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from June 1974 to March 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In November 1997, the veteran appeared before the undersigned Board member and gave testimony in support of his claim. In May 1998, the Board denied the veteran's claim of entitlement to a compensable evaluation for defective vision of the left eye due to traumatic retinal detachment and traumatic glaucoma. The veteran appealed to The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court"). In an order, dated in April 1999, the Court vacated the Board's May 1998 decision, and remanded the claim for additional development. REMAND The veteran has presented a well-grounded claim for increased disability evaluation for his service-connected left eye disorder within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The veteran seeks an increased evaluation for his service- connected left eye disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time. It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made. The resulting difference will be recorded on the rating sheet. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. 38 C.F.R. § 4.22 (1999). In determining the effect of aggravation of visual disability, even though the visual impairment of only one eye is service connected, evaluate the vision of both eyes, before and after suffering the aggravation, and subtract the former evaluation from the latter except when the bilateral vision amounts to total disability. 38 C.F.R. § 4.78 (1999). Diagnostic Code 6070 provides that when a veteran has blindness in one eye, having only light perception, and his or her other eye has vision of at least 20/40 (6/12), a 30 percent rating will be assigned. 38 C.F.R. § 4.84a, Code 6070 (1999). Vision in one eye of 20/200 and in the other eye of 20/40 shall be rated as 20 percent disabling. Vision in one eye of 10/200 and in the other eye of 20/40 shall be rated as 30 percent disabling. Diagnostic Code 6077. The Court has indicated that it has questions concerning the visual acuity in the veteran's left eye prior to service. It was noted that the Board determined that the veteran's visual acuity was 20/400 based on the Medical Board examination report dated in December 1981 which reported that this was indicated at enlistment. It was also reported during this examination that the veteran had 20 percent disability pre- existing service. The Court has ordered that this discrepancy be addressed since depending on the level of pre-service visual acuity, the veteran could possibly receive a 10 percent evaluation. The Court has ordered that a medical opinion be obtained regarding this. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In light of the foregoing, the Board finds that further development, as specified below, is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The veteran should be contacted and requested to provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his left eye disability prior to service entrance and thereafter. With any necessary authorization, the RO should attempt to obtain and associate with the claims folder copies of all pertinent treatment reports identified by the veteran which are not currently of record. Once received, these records should be associated with the claims folder. 2. The RO should make another attempt to secure any additional service medical records. Of particular interest is the veteran's service entrance examination report. All records obtained should be associated with the claims file. 3. The RO should schedule the veteran for an examination by a board certified ophthalmologist, if available, to evaluate the veteran's service-connected left eye disability. All indicated studies should be performed. The examiner should document all findings. The examiner must review the claims file and a copy of this remand in conjunction with the examination. An opinion must be given as to the visual acuity of the veteran's preexisting eye condition prior to service. A complete rationale for all opinions and conclusions expressed should be given. 4. After the examination has been completed, the RO should review the examination report to insure that it complies with the directives of this remand, and if not, it must be returned for corrective action. 5. Then the RO should take any other necessary action, and readjudicate the issue on appeal. After completion of the requested actions, the RO should review the evidence and determine whether the veteran's claim may be granted. If not, the veteran and his representative should be provided with an appropriate Supplemental Statement of the Case. After allowing the veteran appropriate time to respond, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until he is notified by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. F. JUDGE FLOWERS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).