BVA9505075 DOCKET NO. 89-24 795 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. 3. Entitlement to an increased rating for sinusitis with headaches, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: M. Caldwell, Attorney WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from October 1954 to October 1958 and from December 1958 to March 1960. Service connection has been established for bilateral pterygium, coccidioidomycosis of the left lung, and sinusitis with headache. An August 1975 rating decision included denials of service connection for a psychiatric disorder and for an eye disability other than the previously noted pterygium. The veteran did not appeal that determination. In October 1987 the veteran submitted a claim for an increased (compensable) disability rating for sinusitis with headache, and attempted to reopen the claims of service connection for an eye disability and a psychiatric disorder. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from February and October 1988 rating decisions. The veteran was present for a hearing before a hearing officer at the RO in March 1989. The Board remanded the appeal to the RO for further development in March 1990. The veteran was present for a second hearing before a hearing officer at the RO in September 1990. An October 1990 rating decision included a grant of an increased disability rating of 10 percent for the veteran's service- connected sinusitis with headache. The Board issued a decision on April 12, 1991. A motion for reconsideration of that decision was filed with the Board in August 1991. In April 1992 reconsideration and replacement of the April 1991 Board decision was ordered by the authority granted to the Chairman in 38 U.S.C.A. § 7103 (West 1991). A February 18, 1993, decision by an expanded reconsideration section of the Board denied service connection for an eye disability and a psychiatric disorder, and denied a disability rating greater than 10 percent for the veteran's service- connected sinusitis with headache. This matter is currently before the Board as the result of a November 30, 1994 order, signed by the Clerk of the United States Court of Veterans Appeals (Court), vacating the February 1993 Board decision and returning the case to the Board for compliance with the instructions in a joint motion for remand filed on November 23, 1994. REMAND The veteran contends, in essence, that service connection is warranted for an eye disability other that his previously noted pterygium and a psychiatric disorder because they were incurred in or resulted from his active military service. He also contends that his service-connected sinusitis with headaches is productive of greater impairment than reflected by the 10 percent disability rating currently assigned. As noted, the Board has been ordered to remand this matter in compliance with a November 1994 joint motion. The motion indicated that the Board failed to fulfill the VA's duty to assist the appellant under 38 U.S.C.A. §§ 5106, 5107(a), by failing to obtain and consider evidence from the Social Security Administration (SSA), after being notified that said administration had determined that he was totally disabled and unemployable. Specifically, page 11 of the motion states: [B]y letter of January 1992, Appellant indicated he had been found totally disabled and unemployable by a "Federal Administrative Law Judge" and a "Vocational Expert." (citation omitted) The record does not, however, reflect VA's effort, if any, to obtain these alleged Social Security records that might have been reviewed by the "Federal Administrative Law Judge" or "Vocational Expert." The motion subsequently asserts on page 11 that "[o]n remand, the [Board] should direct the [RO] to acquire Appellant's Social Security records relating to alleged proceedings before the 'Federal Administrative Law Judge' and 'Vocational Expert' identified by Appellant." The Board notes that the veteran's sinusitis with headaches has not been examined for rating purposes since April 1990 and that subsequent thereto the veteran underwent facial surgery. A current examination would assist in determining the degree of disability due to the service-connected disorder. Accordingly, in compliance with the Court's order, this appeal is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to obtain from the SSA the records pertinent to the appellant's claim for disability benefits from that agency, as indicated above, as well as all medical records relied upon concerning that claim. 2. The veteran should be scheduled for a special ear, nose and throat examination in order to determine the severity of his sinusitis with headaches. All indicated tests should be performed. The examination should be conducted in accordance with the VA's Physician's Guide for Disability Evaluation Examinations. The claims folder should be made available to the examiner for review prior to the examination. 3. After the development requested above has been completed to the extent possible, the RO should again review the record, including all the information received pursuant to the above and any information submitted on behalf of the appellant, and readjudicate the issues of; 1) Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an eye disability, 2) Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, and 3) Entitlement to an increased rating for sinusitis with headaches, currently evaluated as 10 percent disabling. If any benefit sought on appeal remains denied the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. J. E. DAY M. CHEEK Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals BARBARA B. COPELAND Member, Board of Veterans' Appeals J. J. SCHULE I. S. SHERMAN Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals C. W. SYMANSKI Member, Board of Veterans' Appeals 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).