Citation Nr: 0000002 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 94-13 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an effective date earlier than November 25, 1991, for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for a paralyzed left hemidiaphragm secondary to coronary artery bypass graft. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right eye disability, secondary to combat wounds. 3. Entitlement to service connection for tinnitus. 4. Other issues to be clarified. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from September 1943 to January 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of January 1996, which denied service connection for tinnitus, June 1996, which assigned an effective date of November 25, 1991, for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for a paralyzed left hemidiaphragm, and January 1997, which denied the veteran's attempt to reopen his claim for service connection for a right eye disability, claimed secondary to combat injury residuals. In February 1999, the case was remanded to the RO. A hearing was held in June 1999 in Lincoln, Nebraska, before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). In addition to the issues set forth on the title page of this decision, an appeal was perfected as to the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities. However, in November 1994, the veteran was granted a total schedular rating, effective in December 1992, prior to the date of his claim for a total rating based on unemployability, thus rendering that appeal moot. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). In addition, although the issue of entitlement to waiver of recovery of an overpayment of improved pension benefits was listed on the title page of the prior remand, a substantive appeal as to this issue is not of record, and, accordingly, the issue is not properly before us. See 38 C.F.R. § 20.200 (1999). Additional issues concerning entitlement to compensation under 38 U.S.C.A. § 1151 for subretinal neovascular membrane and additional heart disability, and service connection for heart disability secondary to service-connected disabilities will be addressed in the Remand portion of this decision. FINDINGS OF FACT 1. The initial claim for compensation under the provisions of 38 U.S.C.A. § 1151 for a paralyzed left hemidiaphragm, secondary to coronary artery bypass graft performed in August 1983, was received in May 1989, and denied by the RO in an unappealed rating decision dated in January 1991. 2. In March 1992, the veteran submitted a statement in which he disagreed with the January 1991 rating decision; the RO construed this statement as an attempt to reopen the claim. 3. Compensation under the provisions of 38 U.S.C.A. § 1151 for a paralyzed left hemidiaphragm, secondary to coronary artery bypass graft performed in August 1983, was granted by the RO in May 1995. 4. In June 1996, the veteran was assigned an effective date of November 25, 1991, the effective date of the revised regulation, 38 C.F.R. § 3.358, which implements 38 U.S.C.A. § 1151. 5. Service connection for an eye disability, including secondary to combat wounds, was denied by the Board in March 1986. 6. Service connection for a scar of the right eye was denied by the RO in July 1993. 7. Evidence received since those determinations includes medical evidence, dated subsequent to both determinations, of a current right eye disability, attributed to a shrapnel injury, competent evidence which was not of record at the time of the previous determination, and which bears substantially and directly on the matter in question. 8. Chronic tinnitus had its onset during active military service. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 25, 1991, for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for a paralyzed left hemidiaphragm secondary to coronary artery bypass graft are not met. 38 U.S.C.A. §§ 1151, 5101, 5107, 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.114, 3.358, 3.400 (1995 & 1998). 2. The claim for service connection for a right eye disability, secondary to combat wounds, is reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The claim of entitlement to service connection for a right eye disability, secondary to combat wounds, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 4. Tinnitus was incurred during active wartime service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Earlier Effective Date In May 1995, the RO granted the veteran compensation pursuant to 38 U.S.C.A. § 1151 for a paralyzed left hemidiaphragm. In June 1996, the RO assigned an effective date of November 25, 1991, for the award of benefits for the disability, evaluated 20 percent disabling. The veteran appealed that effective date, claiming that the effective date should be the date of the surgery, in August 1983. The Board initially finds that the appellant's claim as to this issue is well-grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, it is not inherently implausible. The Board also finds that the facts relevant to the issue on appeal have been properly developed and that the VA satisfied its statutory obligation to assist the appellant in the development of facts pertinent to the claim. Id. VA hospital records show that the veteran was admitted in August 1983 with a history of a myocardial infarction in 1973, increasing angina pain, and a recent strongly positive exercise tolerance test. He underwent cardiac catheterization, which disclosed life threatening coronary artery lesions, and he was transferred to another VA hospital, where he underwent quintuple vessel coronary artery bypass. In September 1983, he was transferred back to the first hospital. During that hospitalization, it was discovered that the veteran had a paralyzed left hemidiaphragm, which was felt to be secondary to the surgery. He was discharged in November 1983. A pulmonary examination was conducted in July 1994 by A. Chakraborty, M.D., who noted that paralysis of the hemidiaphragm was a relatively common complication of open heart surgery. According to a VA Medical Memorandum, dated in May 1995, the paralysis of the veteran's left hemidiaphragm had probably occurred during the bypass surgery, and was an unforeseen and unintended consequence of the 1983 surgery. The Memorandum did not indicate that negligence or other VA fault had been present. In May 1995, the RO granted the veteran's claim for compensation for a paralyzed left hemidiaphragm, and in June 1996, an effective date of November 25, 1991, for the award of benefits was assigned. The veteran appealed that effective date, claiming that the effective date should be the date of the surgery, in August 1983, because that is when the additional disability occurred. The effective date of the award of disability compensation due to VA hospitalization or treatment is the date injury or aggravation was suffered if claim is received within 1 year after that date; otherwise, the date of receipt of claim. 38 U.S.C.A. § 5110(c) (West 1991); 38 C.F.R. § 3.400(i)(1) (1999). The veteran did not file a claim for compensation for a paralyzed left hemidiaphragm until May 1989, more than one year after the VA treatment which resulted in the injury. Under 38 U.S.C. § 5101(a), "[a] specific claim in the form prescribed by the Secretary ... must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary." (Emphasis added). Jones v. West, 136 F.3d 1296, 1299 (1998). "Section 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid." Id. Consequently, the effective date could not, in any event, predate the veteran's May 1989 claim. Further, the May 1989 claim was disallowed by a rating decision dated in January 1991, on the basis that the injury was considered to be a surgical risk associated with the surgical procedure, and there was no evidence showing carelessness, negligence, lack of proper skill, or other indication of fault on the part of the VA. A notice of disagreement with this determination was not received within one year of the January 29, 1991, notification to the veteran; accordingly, that decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1999). The veteran has stated, in connection with the current appeal, that he did in fact file a notice of disagreement within one year of the January 1991 notification to him of the decision. However, the claims file does not contain any record of such a communication. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet.App. 307, 311 Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Thus, there is a rebuttable presumption that VA properly discharged its official duties by properly handling claims submitted by the veteran. The veteran's statement, alone, is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Schoolman, Mindenhall. Moreover, in a letter dated and received in March 1992, the veteran referred to the January 29, 1991, letter, noting that he disagreed with the determination that there was no VA fault involved in the 1983 surgery, and containing contentions that negligence and poor judgment had been involved in the creation of the additional disability. He did not refer to any earlier correspondence regarding the § 1151 issue. He did, however, reference a December 1991 letter from himself; review of this letter, which deals with an apportionment claim, does not disclose any mention of the § 1151 issue. Consequently, the weight of the evidence is against the veteran's assertion that he submitted a timely notice of disagreement with the January 1991 determination, and the presumption of administrative regularity is not rebutted. In December 1992, the veteran was informed that adjudication of claims involving § 1151 had been suspended pending the final appellate resolution of Gardner v. Derwinski, 1 Vet. App. 584 (1991), a Court decision that had invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that the element of fault required by the regulatory provision was beyond the scope of the authorizing statute, 38 U.S.C.A. § 1151 (formerly § 351). In December 1994, the Supreme Court affirmed the lower courts' decisions in Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994), and 38 C.F.R. § 3.358(c)(3) was subsequently amended to conform with the Supreme Court's decision. The revised regulations, issued in March 1995, did not require negligence on the part of the VA for the veteran to prevail. (Although the statute was amended, effective in October 1997, to require negligence on the part of the VA, the veteran's case is not affected by that amendment. See 38 U.S.C.A. § 1151 (West 1991 & Supp. 1997).) The amendments were made effective retroactive to November 25, 1991, the date of the original Gardner decision. The RO, construing the veteran's March 1992 statement as a reopened claim, awarded compensation for a paralyzed left hemidiaphragm, effective November 25, 1991, pursuant to the amended regulation and 38 U.S.C.A. § 5110(g). According to that statutory provision, where compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110(g) (West 1991 & Supp. 1999); 38 C.F.R. § 3.114 (1999). (Emphasis added.) Further, two precedent opinions issued by the VA Office of General Counsel hold that an effective date of an award of compensation or pension based upon judicial precedents alone may be no earlier than the date of receipt of the claim therefor, but that an award predicated upon an amendment to a regulation which was prompted by a judicial precedent, 38 U.S.C.A. § 5110(g) should be applied in assigning the effective date if to do so would be to the benefit of the claimant. VAOPGCPREC 9-94 (O.G.C. Prec. 9-94) and VAOPGCPREC 10-94 (O.G.C. Prec. 10-94). The denial of the veteran's claim in 1991 was based on the RO's conclusion that the paralyzed left hemidiaphragm was a surgical risk associated with the bypass procedure, and that there was no evidence showing carelessness, negligence, lack of proper skill, or other indication of fault on the part of the VA. The grant of compensation pursuant to § 1151 was based on the revised regulation, which removed the necessity of a showing of VA fault. Since the date of claim was in March 1992, it is to the veteran's benefit to apply 38 U.S.C.A. § 5110(g), which permits a retroactive effective date of November 25, 1991, the effective date of the regulation upon which the grant of benefits was based. However, there is no authority on which to base the grant of an effective date prior to that date, under the facts of this case. Accordingly, the benefit of the doubt doctrine does not apply and the veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991). B. Right Eye Disability 1. New and Material Evidence Entitlement to service connection for an eye disorder with loss of vision was denied by the Board in March 1986, including as secondary to a service-connected shell fragment wound of the right temple. That decision is final. 38 U.S.C.A. §§ 7103, 7104 (West 1991 & Supp. 1999). In addition, service connection for a scar of the right eye was denied by the RO in July 1993; that decision is also final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104 (1998). However, if new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991). In considering whether there is "new and material evidence," all evidence submitted since the last time that the claim was finally disallowed on any basis must be considered. Evans v. Brown, 9 Vet.App. 27 (1996). However, the RO decision in July 1993 did not include the aspect of secondary service connection, the attempt to reopen must be considered in light of both of these determinations. Subsequent to the RO's January 1997 denial of the veteran's attempt to reopen his claim, the U.S. Court of Appeals for the Federal Circuit issued a decision that altered the standard used to determine whether evidence is "new and material." Specifically, requirement of a reasonable possibility that the new evidence would result in a change in outcome, as set forth in Colvin v. Derwinski, 1 Vet.App. 171 (1991), was found to be more stringent than, as well as inconsistent with, the pertinent regulation. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). According to Hodge, "new and material evidence" is defined as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of a claim. 38 C.F.R. § 3.156(a) (1998); Hodge. Accordingly, the veteran's claim must be considered pursuant to the Hodge standard. See Karnas v. Derwinski, 1 Vet.App. 308 (1991). Evidence of record at the time of the March 1986 Board decision included service medical records which documented that in August 1944, the veteran sustained multiple shell fragment wounds, to the right hip, penetrating to the abdomen, the right arm, and the right temporal region of the scalp. Skull X-rays taken that month did not disclose any foreign bodies. In October 1944, conjunctivitis was noted. In December 1944, physical examination of the head, including special senses, was noted to be normal except for a well- healed, two-centimeter scar over the right temporal region. The veteran was discharged in January 1945, due to his combat wounds. Subsequent to service, a VA examination in November 1945 disclosed a small, well-healed scar at the hairline of the right temporal region. On a VA examination in August 1947, the external and internal structures of each eye were noted to be normal, and visual acuity was 20/20, bilaterally. In October 1975, examination of the eyes disclosed the pupils to be round, regular, equal, and reactive to light and accommodation. The sclerae and conjunctivae were negative, and extra-ocular movements were intact. A VA ophthalmology consultation in October 1983 disclosed a slight depression of the right orbital rim from a previous injury. The macula and retina were within normal limits. The file also contained a statement dated in March 1985, from A. Allie, M.D., who wrote that there were two superior macular scars in the right eye. Based on this evidence, the Board denied the claim in March 1986, on the basis that the service records did not disclose any traumatic pathology of the eyes, and that current eye disability was not shown to be related to service, or to be secondary to the right temple shell fragment wound. In January 1993, a VA evaluation disclosed a scar to the right eye peripherally at nine o'clock. In July 1993, the RO denied service connection for a right eye scar on the basis that it had first been shown many years after service. Evidence received since these determinations includes the report of an October 1993 VA examination which includes a diagnosis of "loss of vision, including peripheral vision, right eye, secondary to shrapnel wound, right temple." In addition, according to a May 1996 VA ophthalmology consultation, funduscopic examination disclosed a large central macular scar in the right eye, "probably [secondary] to reactivation of old retinal scar from shrapnel injury," and a slit lamp examination disclosed an "old f[oreign b[ody] scar of cornea." This medical evidence of a current right eye disability attributed to service is new, and is so significant that it must be considered in connection with the evidence previously of record. 38 C.F.R. § 3.156(a) (1999); Hodge. In this regard, for the purpose of determining whether evidence is new and material, evidence is presumed credible and accorded full weight; the evidence is weighed and credibility assessed after the claim is reopened. Justus v. Principi, 3 Vet.App. 510 (1993). Accordingly, the claim is reopened with the submission of new and material evidence. 2. Well-Grounded Claim Since the claim for service connection for a right eye disability is reopened, the claim must next be reviewed in light of all the evidence, new and old, to determine whether a well-grounded claim has been submitted. Elkins v. West, 12 Vet.App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. As discussed above, the veteran has diagnoses of disability, or disabilities, of the right eye, medically attributed to a shrapnel wound. Additionally, he served in combat, and it is documented that he sustained shrapnel wounds during service. Accordingly, all three elements have been met, and the claim is well-grounded. In this regard, for the purpose of determining whether a claim is well grounded, evidence is presumed credible and accorded full weight; the evidence is weighed and credibility assessed at the merits stage. See King v. Brown, 5 Vet.App. 19 (1993). C. Service Connection -- Tinnitus As noted above, a well-grounded claim requires (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps. Lay evidence may suffice in circumstances in which the determinative issue does not require medical expertise, such as the occurrence of an injury or the recounting of symptoms. Cohen v. Brown, 10 Vet. App. 128, 136 (1997); Heuer v. Brown, 7 Vet.App. 379 (1995). The veteran contends that he has suffered from tinnitus continuously since service, and a June 1994 VA examination diagnosed tinnitus. Subsequently dated medical records have shown continued complaints of tinnitus. Since the veteran is competent to report the symptoms of tinnitus, his contentions, together with the current diagnosis, are sufficient to well ground the claim. Epps. Further, the relevant facts have been properly developed, and, accordingly, the statutory duty of the Department of Veterans Affairs (VA) to assist in the development of a well- grounded claim has been satisfied. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1991). Because the veteran has been afforded an opportunity to appear at a hearing, and his contentions and evidence submissions have been focused on the merits of the claim, we also do not believe the appellant will be prejudiced by our deciding the case at this time on the merits. Bernard v. Brown, 4 Vet.App. 384 (1993). Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In general, service connection will be established if the evidence supports the claim or is in relative equipoise; only if a fair preponderance of the evidence is against the claim will the claim be denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Service medical records do not contain any mention of tinnitus, including on the separation examination, and tinnitus was first medically noted decades after service. However, the veteran contends that tinnitus occurred during combat situations, as a result of acoustic trauma. His service records conclusively document combat exposure, as well as shell fragment wounds. Consequently, the provisions of 38 U.S.C.A. § 1154(b) are for application. As interpreted by the Court, this statute requires a three-step sequential test to determine service connection for disabilities claimed to have been incurred during combat. Collette v. Brown, 82 F.3d 389 (1996) Specifically, Collette requires that there be (1) satisfactory evidence of service incurrence, which is (2) consistent with the circumstances of combat service, and, if so, (3) whether there is clear and convincing evidence to rebut a presumption of service connection. However, recently, the Court explicitly limited the three-step Collette analysis to the question of service incurrence, and not to the question of nexus to service or to current disability. Kessel v. West, 13 Vet.App. 9 (1999). As to determining service incurrence, the veteran has provided written statements regarding his inservice acoustic trauma, and concomitant ringing in the ears (tinnitus). He states that he has suffered from tinnitus continuously since his combat exposure in service, during which time he sustained acoustic trauma. The VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, has recognized that tinnitus may result from acoustic trauma. See 38 C.F.R. Part 4, Code 6260 (1998) (amended in 1999 to remove requirement of causal factors from compensable rating criteria). The Rating Schedule also identifies tinnitus as a "subjective" symptom. 38 C.F.R. § 8046 (1999). Consequently, the veteran's history, under the limited circumstances of this case where the veteran is competent to provide the evidence, fulfills the first two prongs of the test, i.e., satisfactory evidence of service incurrence, which is consistent with the circumstances of the veteran's combat service. See Collette. Turning to the third step, whether the presumption of service incurrence is rebutted by clear and convincing evidence, the absence of any contemporaneous account of tinnitus in service, or for many years thereafter, alone, is not "clear and convincing" evidence to the contrary, and does not rebut the presumption of service incurrence. Accordingly, we find that the veteran experienced tinnitus in service. As to whether service connection is warranted, there is current medical evidence noting a diagnosis of tinnitus, and several medical reports showing complaints of tinnitus. As to a nexus to service, the veteran has testified that he has had tinnitus continuously since service. However, we note that there are factors which militate against the veteran's claim. Most significant is the absence of any contemporaneous record of tinnitus for many years after service, despite the veteran's current statement that he noticed both symptoms in service. In addition, although a history of tinnitus is noted on several medical records created during the past few years, the actual diagnosis of tinnitus, in June 1994, was based on history provided by the veteran, much of which is not consistent with the report of the veteran's combat wounds, as described in the service medical records. Nevertheless, the medical records which do show a history of tinnitus have consistently related its onset to service. Moreover, we find the absence of a contemporaneous account plausibly explained by the presence of severe abdominal wound residuals and other injuries and symptoms, which may have minimized the importance of tinnitus. Additionally, no other cause for the veteran's current tinnitus has been suggested. Particularly in view of the subjective nature of tinnitus, the evidence supporting a nexus between service tinnitus and current tinnitus is in equipoise. With the resolution of all reasonable doubt in the veteran's favor, service connection for tinnitus is warranted. ORDER Entitlement to an effective date earlier than November 25, 1991, for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for a paralyzed left hemidiaphragm secondary to coronary artery bypass graft, is denied. The claim for entitlement to service connection for a right eye disability, secondary to combat wounds, is reopened by the submission of new and material evidence, and is well grounded. To this extent only, the appeal as to that issue is granted. Service connection for tinnitus is granted. REMAND A. Service Connection For Right Eye Disability, Due To Combat As discussed above, the claim for service connection for a right eye disability, secondary to combat wounds, is well- grounded; consequently, VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); see also Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). The veteran contends that he has a right eye disability that was either incurred as a direct result of a shell fragment wound, or that it developed secondary to the service- connected shell fragment wound of the right temple. As discussed above regarding tinnitus, because the veteran's claim is based on combat, the provisions of 38 U.S.C.A. § 1154(b) (West 1991) are for application in deciding the merits of the claim. Under applicable case law, this statute requires a three-step sequential test to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The first two prongs of the test are (1) satisfactory evidence of service incurrence, which is (2) consistent with the circumstances of the veteran's combat service. If these two elements are met, there is a presumption of service connection, and the third step of the test requires a determination as to whether the presumption of service connection is rebutted by clear and convincing evidence. "Clear and convincing" evidence has been defined as "more than a preponderance" of the evidence. Arms v. West, 12 Vet.App. 188, 196 (1999). However, 38 U.S.C.A. § 1154(b) only applies to the question of service incurrence, and not to the question of nexus to service. Kessel v. West, 13 Vet.App. 9 (1999); Brock v. Brown, 10 Vet.App. 155, 162 (1997); Libertine v. Brown, 9 Vet.App. 521 (1996); Beausoleil v. Brown, 8 Vet.App. 459, 464 (1996). In a recent decision, the court explicitly limited the three-step Collette analysis, involving whether there is (1) satisfactory evidence of service incurrence, which is (2) consistent with the circumstances of the veteran's combat service, and, if so, (3) whether the presumption of service connection is rebutted by clear and convincing evidence, only applies to determining service incurrence, and not to questions of nexus or current disability. Kessel. Similarly, 38 U.S.C.A. § 1154(b) does not apply to questions of secondary service connection. See Libertine. Moreover, unlike the claim involving tinnitus, resolution of this claim requires medical expertise, because the disability is not subject to lay observation. Heuer. The medical picture is further complicated by the presence of several diagnoses involving the right or both eyes, and conflicting medical opinions regarding the relationship to service, or to service-connected disability, of certain diagnosed disorders. In this regard, no disability involving the right eye area was diagnosed until October 1983, when a slight depression of the right orbital rim from a previous injury was noted. In March 1985, A. Allie, M.D., diagnosed two superior macular scars in the right eye. D. Forgey, M.D., examined the veteran in June 1994; he diagnosed bilateral nuclear sclerosis cataracts, bilateral age related macular degeneration, and a chorioretinal scar of the right eye. He noted that the level of cataracts and macular degeneration were consistent with age, and that if the cataract changes had been due to the shell fragment wound of the right temple, the posterior subcapsular component should be in the right eye or both eyes and not just the left eye. The macular scar, which was small enough to have been potentially missed on a quick evaluation, was probably not contributing significantly to any of his ocular complaints. There was a slight contraction of the visual field in the right eye, felt to possibly be due to poor patient reliability and effort. According to correspondence from M. Mota, M.D., the veteran was seen in October 1995 with a sudden deterioration of vision in the right eye; examination disclosed a subretinal neovascular membrane. Dr. Mota treated the disorder, and when seen for follow-up a week later, the veteran's vision had improved substantially. However, a follow-up appointment in December 1995 disclosed that the subretinal neovascular membrane had recurred, and was too large for laser treatment. His vision was "counting fingers" in that eye. In May 1996, the veteran was referred to an evaluation by J. Campbell, M.D., who reported an old foreign body scar of the cornea, and a large central macular scar in the right eye, probably secondary to reactivation of old retinal scar from shrapnel injury. Cataracts, worse on the left, were also diagnosed. However, Dr. Campbell again evaluated the veteran in May 1997, at which time he did not attribute any of the veteran's right eye disability to shrapnel injury. He also had the veteran's VA records available for review. The diagnoses were permanent legal blindness in the right eye secondary to macular scar post laser treatment for subfoveal neovascular membrane; peripheral chorioretinal scar of the right eye, unknown etiology; cataracts in both eyes; and early macular degenerative changes in the left eye. Thus, in view of the foregoing, the veteran must be afforded an examination, to ascertain whether any or all of his right eye disability is due to a shrapnel wound, or to service- connected residuals of a shrapnel wound to the right temple. B. Additional Issues In September 1997, the RO denied the veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for subretinal neovascular membrane, claimed as a result of delay in VA treatment in October 1995. The veteran submitted a notice of disagreement in January 1998, and presented testimony as to that issue at his hearing before the undersigned in June 1999. However, he has not been furnished a statement of the case which addresses that issue. The Court has held that where a notice of disagreement has been submitted, but no statement of the case has been issued, the Board must remand the case to the RO for the issuance of a statement of the case. Manlincon v. West, 12 Vet.App. 238 (1999). Similarly, a statement of the case has not been furnished in response to the September 1997 notice of disagreement with the September 1997 rating decision denying compensation under 38 U.S.C.A. § 1151 for additional heart disability claimed to have been incurred during a VA hospitalization in 1983. However, the veteran did not present testimony concerning that issue in the June 1999 hearing, and the veteran's representative stated at the hearing that they had "eliminated a couple" of issues when discussing the case prior to the hearing. Additionally, the veteran did not testify concerning the issue of service connection for a heart disability claimed secondary to service-connected combat disabilities, although an appeal as to that issue has been perfected. Nevertheless, the eliminated issues were not specified at the hearing, and there is no written withdrawal of any of the appealed issues of record, as is required by 38 C.F.R. § 20.204 (1999). Moreover, the veteran was granted service connection for "atherosclerotic heart disease, status post myocardial infarction, coronary artery bypass graft and angina," secondary to tobacco use of service onset, in August 1998, evaluated as 60 percent disabling. However, that rating decision also continued a 100 percent nonservice-connected evaluation for "ASHD, s[tatus] p[ost] bypass graft" which had been in effect since 1983. In addition to an apparent duplication of at least part of the heart disease contained in these two disability ratings, the service connected heart disease is rated only 60 percent disabling, whereas previously the veteran's heart disease was rated 100 percent disabling. These errors and/or discrepancies must be resolved by the RO, and if the RO determines that there is additional heart disease which is not service-connected, appellate development must be undertaken concerning the relevant issues, as described below. Finally, the RO is advised that the Court has found that a remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet.App. 268 (1998). While the Board regrets the delay involved in remanding this case, under the circumstances discussed above, it is felt that proceeding with a decision on the merits at this time would not withstand Court scrutiny. Accordingly, to ensure that the 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 the RO for the following: A. Service Connection For Right Eye Disability, Due To Combat: 1. The veteran should be scheduled for an examination by an ophthalmologist to determine whether any or all of his right eye disorders are due to or consistent with a claimed shrapnel injury in service, or due to service-connected residuals of a shrapnel wound to the right temple. Prior to conducting the examination, the examiner should be provided a copy of this remand and the veteran's claims folder and should review the veteran's medical history, to include the service medical records, the VA examinations dated in November 1945, August 1947, and October 1975; the ophthalmology consult dated in October 1983; the March 1985 statement of A. Allie, M.D., the October 1993 VA examination; the June 1994 evaluation by D. Forgey, M.D., the correspondence dated in 1995 and 1996 from M. Mota M.D., the May 1996 and May 1997 evaluations by Dr. Campbell, and VA treatment records, particularly outpatient treatment records dated in October 1995, May 1996, and September 1996. In addition, a detailed history should be obtained from the veteran. Any studies needed to address the above questions, or to resolve questions raised by the record or the examination, should be accomplished prior to a final opinion. All conclusions should be explained in detail, and the examiner should also explain why he or she disagrees with medical evidence of record that reaches the opposite conclusion as to whether a shrapnel injury caused a right eye disability. The evidence relied upon for the conclusions should be identified, as the supporting statements are essential to the Board's determination. 2. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete or inadequate, appropriate corrective action should be taken. See Stegall, supra. 3. Once the file has been determined to be ready for review, the RO should review the claim for service connection for an eye disability, with appropriate consideration of 38 U.S.C.A. § 1154(b), in light of Collette and Kessel, as discussed above. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto with additional argument and/or evidence. B. Additional Issues: 1. The RO must review the veteran's claim for entitlement to compensation under 38 U.S.C.A. § 1151 for subretinal neovascular membrane, claimed as a result of delay in VA treatment in October 1995, with consideration of the additional evidence submitted since the September 1997 rating decision denying that issue, as well as the June 1999 hearing testimony transcript. If the issue remains adverse to the veteran, he and his representative must be furnished a statement of the case regarding that issue, and provided an opportunity to submit a substantive appeal. See Manlincon, supra. 2. The RO should review the September 1997 rating decision in order to reconcile the previous nonservice-connected rating of 100 percent for "ASHD, s[tatus] p[ost] bypass graft" with that decision's grant of service connection for service- connected "atherosclerotic heart disease, status post myocardial infarction, coronary artery bypass graft and angina," secondary to tobacco use, and assignment of a 60 percent rating, and continuation of the nonservice-connected evaluation of 100 percent for "ASHD, s[tatus] p[ost] bypass graft." This apparent discrepancy should be corrected and/or explained. 3. If the RO finds that there is no remaining nonservice-connected heart disease, i.e., that the veteran's heart disease, in its entirety, is service- connected, the RO should inform the veteran that the remaining issues of service connection for heart disease secondary to service-connected combat disabilities, and compensation pursuant to 38 U.S.C.A. § 1151 for additional heart disability are moot, because no remaining case or controversy as to heart disease remains. 4. If the RO determines that remaining nonservice-connected heart disease does exist, the veteran should be contacted and asked whether he wishes to continue his appeal for a heart disability claimed secondary to service-connected disabilities, and for compensation under 38 U.S.C.A. § 1151 for additional heart disability claimed to have been incurred during a VA hospitalization in 1983. If the veteran responds, the RO should act in accordance with the response. If the veteran does not respond, the RO must assume that the veteran wishes to appeal both issues. 5. Unless the RO determines that all heart disability is service-connected, or the veteran withdraws his notice of disagreement, the RO must furnish the veteran and his representative a statement of the case which addresses the issue of compensation under 38 U.S.C.A. § 1151 for additional heart disability claimed to have been incurred during a VA hospitalization in 1983. See Manlincon, supra. 6. Unless the RO determines that all heart disability is service-connected, or the veteran withdraws his appeal, the RO must certify the appeal for the issue of service connection for a heart disability claimed secondary to service-connected combat disabilities, and return that issue 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. JEFF MARTIN Member, Board of Veterans' Appeals