BVA9500101 DOCKET NO. 90-16 146 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES Whether new and material evidence has been received to reopen claims of entitlement to service connection for hepatitis, loss of teeth, and hearing loss, respectively. Entitlement to service connection for chronic hypertension. Entitlement to service connection for a chronic back disability. Entitlement to service connection for a chronic left leg disability. Entitlement to service connection for a chronic disability manifested by hyperacidity. Entitlement to service connection for post-traumatic osteoarthritis. Entitlement to an increased rating for psychoneurosis with amblyopia of the left eye, rated as 50 percent disabling (protected) and defective vision of the left eye, rated as 30 percent disabling (protected), to include the issues of whether rating decisions of April 23, 1964, and March 11, 1982, involved clear and unmistakable error (CUE) as to the disability evaluations assigned for bilateral defective vision, and whether the October 25 and November 28, 1988, rating decisions were proper. Entitlement to an increased rating for urethral stricture, currently rated as 30 percent disabling. Entitlement to an increased (compensable) rating for deviated nasal septum. Entitlement to an increased (compensable) rating for residuals of a shrapnel wound of the right upper cheek. Entitlement to a total rating based on individual unemployability due to service connected disabilities. Entitlement to special monthly compensation on account of the need of the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Kevin M. Brown, Attorney At Law WITNESSES AT HEARING ON APPEAL Appellant and son-in-law ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran had active duty from August 1940 to August 1945. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) at Albuquerque, New Mexico. On October 25 and November 28, 1988, RO denied entitlement to an increased rating for visual impairment beyond a protected rating of 80 percent (combined and protected) for amblyopia of the left eye and defective vision of the right eye, which had been assigned on the basis of blindness in one eye, with only light perception, and defective visual acuity in the other eye of 15/200, under 38 C.F.R. Part 4, Diagnostic Code 6068. In March 1991, the Board of Veterans' Appeals (Board) remanded the case for clarification of a hearing request by the veteran and a Supplemental Statement of the Case on the clothing allowance issue, which had been certified on appeal to the Board without one. In February 1992, the Board decided that the above-specified rating decisions were consistent with the overall available evidence and that the veteran was not entitled to clothing allowance, currently or retroactively. The veteran appealed the Board's February 1992 decision to the United States Court of Veterans' Appeals (Court) which entered a Memorandum Decision on the case on August 25, 1994, and Judgment on the case on September 14, 1994. His appeal on clothing allowance was dismissed for lack of jurisdiction because the veteran had not filed a Notice of Disagreement (NOD) for the clothing allowance claim, and such was required to be filed on or after November 18, 1988 in order for the Court to have jurisdiction over the appeal. On the other issues, the Court vacated the Board's February 1992 decision and remanded the case, retaining jurisdiction. REMAND The Court's February 1992 decision held, in substance, that: 1. The issues of an increased rating for the veteran's service-connected bilateral eye disabilities, CUE in prior rating decisions in December 1963 (sic April 1964), March 1982, and October and November 1988 as to the ratings assigned for bilateral defective vision that were less than total, and a total disability rating based on individual unemployability are inextricably intertwined and, accordingly, have to be decided by RO and the Board together and simultaneously. 2. The issues on appeal include all the issues denied by RO on March 13, 1990, as the pertinent NOD applied to them all. The uncertified issues are (1) claims of CUE in 1964 and 1982 RO decisions; (2) service connection for a chronic disability manifested by hyperacidity; (3) service connection for hypertension; (4) service connection for a chronic nervous disability; (5) service connection for a chronic back disability; (6) an increased rating for urethral stricture; (7) whether new and material evidence has been submitted in order to reopen a claim of service connection for hepatitis; and (8) entitlement to special monthly compensation (SMC) on account of the need for the regular aid and attendance of another person. 3. Additional claims of service connection for residuals of hand and arm injuries, tinnitus, a nose injury, arthritis, and a foot injury have been raised in the March 1990 NOD and should be adjudicated by RO and the Board in a timely manner as should the claim for service connection for a dental disability which was properly raised but apparently not adjudicated by the RO. 4. A comprehensive VA examination on all claims found to be well grounded is required with the records being made available to the examiner. Subsequent to the veteran's appeal to the Court, the RO developed his claims further, with adjudication and Statements of the Case (SOC) on the additional issues listed under the preceding ISSUES heading, except for a total compensation rating based on individual unemployability, that was denied by rating decision in July 1994. This issue is on appeal because the veteran filed a NOD in August 1994, but an SOC on it was not prepared. The veteran apparently has withdrawn the issue of entitlement to service connection for a nervous condition, claimed as post- traumatic stress disorder. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to RO for the following development: 1. The RO should determine whether the veteran's claims as to service connection for dental disability, hand and arm injuries, tinnitus, and a foot injury are well grounded. 2. Then, comprehensive, special VA rating examinations should be conducted on all the disabilities at issue that are/have been found to be well-grounded. An opthalmologist should conduct the rating examination regarding claimed vision loss. All indicated tests should be conducted. The claims folder must be made available to the examiners for review prior to the examinations, respectively. It is requested that the ophthalmologist give an opinion as to the cause and extent of the veteran's vision loss and whether and to what extent it is functional. 3. The examinations should included a complete audiometry examination to determine whether the veteran does have hearing loss for the purpose of service connection, as comprehended by 38 C.F.R. § 3.385 (1993), which became effective in April 1990 and changed the criteria for service-connection for hearing loss. 4. The RO should obtain the veteran's vocational rehabilitation and education folder. 5. The RO must adjudicate all outstanding claims of the veteran which have not yet been currently adjudicated. 6. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a NOD has been filed, remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. (CONTINUED ON NEXT PAGE) Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of this REMAND is to comply with the Court's August 1994 decision. SAMUEL W. WARNER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).