Citation Nr: 0007694 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-08 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for the residuals of bilateral eye surgery, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for chronic obstructive pulmonary disease with emphysema, bronchitis, and asthma, for the period from October 1, 1993, to December 10, 1996. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant had active duty service from May 1973 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) from a March 1994 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The claim was subsequently transferred to the Winston-Salem, North Carolina, RO. REMAND By means of a rating decision dated in March 1994, the appellant was awarded service connection for chronic obstructive pulmonary disease (COPD) with emphysema and asthma, trichiasis, and hemorrhoids, all of which were rated noncompensable. Service connection for endometriosis was denied at that time. Notice of this rating decision was sent to the appellant in March 1994. She submitted a timely (in January 1995) notice of disagreement with that decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. A statement of the case (SOC) was issued on April 13, 1995. In May 1995, she submitted a statement in which she stated that she was in receipt of the SOC "in order that [she] may study it over with the distinct intention of appealing [the RO's] decisions made in [her] compensation claim." She then stated that before furnishing "the 1-9 for the appeal, [she] wish[ed] to be scheduled for a [personal hearing] in Winston Salem in connection with this claim." Subsequently, during a hearing held on June 28, 1995, she testified as to the nature and severity of the disabilities of the lungs and eyes, and withdrew her appeal of all other claims other than the matter of increased ratings for the lung and eye conditions. On this same day, she submitted a VA Form 9, in which she asked that her testimony be used as the basis of her formal appeal. It is noted that subsequent to this hearing, the RO awarded the appellant a 10 percent rating for the disability of the lungs, and a 10 percent rating for the bilateral eye disability, effective from October 1, 1993. The issues of entitlement to increased ratings for the lung and eye disabilities were not certified to the Board at that time. By means of a rating decision dated in February 1996, the RO increased the disability rating for the appellant's lung condition to 60 percent disabling, effective from October 30, 1995. A rating decision dated in November 1997 increased the rating for her lung condition to 100 percent disabling, effective from December 10, 1996. In a statement dated in December 1997, she indicated that she was entitled to a 100 percent disability rating effective from an earlier date. The RO then certified to the Board the issue of entitlement to an earlier effective date for assignment of a 100 percent evaluation for the lung disability. The record indicates that in May 1995, the appellant filed a substantive appeal of the claims addressed in the initial (March 1994) rating decision. In particular, the Board finds that the appellant's May 1995 statement, in which she expressed her intention to appeal the RO's decision on her claims for compensation, should be considered her substantive appeal with regard to the claims addressed in the March 1994 rating decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. This appeal was timely; therefore, the Board concludes that the appellant perfected a timely appeal of the issues addressed in the March 1994 rating decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. However, all claims addressed in the March 1994 rating decision, other than the claims of entitlement to increased ratings for the lung and eye disabilities, were withdrawn during the June 1995 hearing. 38 C.F.R. § 20.204; see, generally, Tomlin v. Brown, 5 Vet. App. 355 (1993) (hearing testimony before the RO, when reduced to writing, can constitute a notice of disagreement). Since the matter of entitlement to an earlier effective date for the increased (100 percent) rating is incorporated, in this case, in the issue of entitlement to an increased rating for the lung condition, the issues listed on the title page are the only issues currently before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). Service medical records indicate that the appellant underwent a surgical procedure of the eyelids (specific name of procedure is illegible) in December 1984. During a hearing held in June 1995, she stated that her "left eye was mutilating [sic.] when they put the stitches in. It didn't heal correctly. So [she has] the scarring from that with the puffiness and everything." See transcript of hearing, page 7. She also reported loss of eyelashes and blocking of the lacrimal gland as a result of the disability of her eyes. A report of a VA examination, dated in December 1993, indicates that the upper lids showed irregular lash placement. She was diagnosed with residuals of upper eyelid surgery for trichiasis with poor results. The examiner did not state whether there were any visible scars. The Board finds that prior to further consideration of this matter, it is necessary that an additional VA examination be conducted to address all residuals of the service-connected eye disability, and to specifically describe any visible scars on the eyelids. See Arms v. West, 12 Vet. App. 188, 198 (1999) (lay observation is competent to identify the existence of a scar disability). The evidence also shows that a report of a VA examination, dated in January 1994, noted that pulmonary function tests had been ordered. However, the results of such tests are not associated with the claims file. In addition, a Social Security Administration (SSA) award letter, received by VA in November 1995, indicates that the appellant was found to be disabled (for SSA purposes) as of February 1995. The award letter states that in deciding the claim, SSA considered, among others, a VA report dated April 6, 1995 (it is unclear whether this is a medical report), and an August 29, 1995, "consultative" examination conducted by Dr. R.F. The Board finds that, prior to further consideration of this matter, the RO should ensure that these documents are obtained and associated with the claims file. Accordingly, this case is REMANDED for the following: 1. The RO should schedule the appellant with VA examination(s) to determine the nature and severity of her bilateral eye disability. The examiner is requested to record all of the appellant's complaints and symptoms associated with the service connected disability of trichiasis, to include any condition of the lacrimal gland. It is also requested that the examiner describe any visible scars on the eyelids. If there are any visible scars, pictures of such scars should be taken and associated with the claims file. The claims file and a copy of this remand must be made available to and reviewed by the examiner(s) prior to completion of the examination report(s). 2. In connection with the above-cited development, the RO is advised to ensure compliance with examination reporting requirements. See 38 C.F.R. § 3.655. 3. The RO should take the necessary steps to obtain all VA medical records beginning from the date of the appellant's separation from service through December 1996. The RO should make a specific attempt to obtain the result of any pulmonary function tests that were ordered (and presumably performed) in January 1994. 4. The RO should take the necessary steps to obtain the appellant's SSA records and associate them with the claims file. 5. Once the above has been accomplished, the RO should readjudicate the claims on appeal, giving consideration to all applicable statutes, regulations, and rating criteria. If the benefits sought on appeal are not granted to the appellant's satisfaction, following the usual appellate procedures, the claim should be returned to the Board. 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. CLIFFORD R. OLSON Acting 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).