Citation Nr: 1736629	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  08-28 528	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial increased rating in excess of 20 percent prior to December 3, 2016, and in excess of 30 percent thereafter, for residuals of toxoplasmosis, left eye, with chorio-retinitis, central scotoma, and cataract status post intraocular lens placement.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jack S. Komperda, Associate Counsel




INTRODUCTION

The Veteran served on active duty from May 1983 to June 2007.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for left eye toxoplasmosis of the retina, effective July 1, 2007.  Jurisdiction of the case presently resides with the RO in Nashville, Tennessee.

A July 2008 rating decision subsequently assigned a 20 percent disability rating, effective July 1, 2007.  In a January 2017 rating decision, the Veteran's left eye disability was increased to 30 percent, effective December 3, 2016.  As the Veteran was not awarded the maximum available benefits for this disability, the issue remains in appellate status.  AB v. Brown, 6 Vet. App. 35 (1993). 

In August 2009, the Veteran requested a hearing before the Board; however, he subsequently withdrew the request in October 2009. 

This matter was last before the Board in July 2016, and it was remanded to conduct additional evidentiary development.  For the reasons discussed below, another remand is required.  See Stegall v. West, 11 Vet. App. 268 (1998). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran was last afforded a VA examination in December 2016 to evaluate the severity of his service-connected left eye disability.  The examination report included visual acuity measurements for central uncorrected and corrected visual acuity for distance vision, but did not include either uncorrected or corrected visual acuity measurements for near vision.  Further, the Board asked in its July 2016 remand instructions that the VA examiner should specifically comment on whether there has been any active disease during the appeal period.  However, the VA examiner provided no such commentary in his report.  As such, the December 2016 VA eye examination is inadequate for purposes of rating the left eye disability on appeal; therefore, a new VA examination is required to help ascertain the current extent of the disability.   See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Veteran has maintained during the appeal period that he has recurrent active stages of toxoplasmosis.  See November 2007 Notice of Disagreement.  An April 2008 private treatment record has also noted that the Veteran had a history of recurrent toxoplasmosis.

The Board notes that the rating criteria for evaluating diseases of the eye were amended during the pendency of this appeal.  See 73 Fed. Reg. 66544 (November 10, 2008).  These amendments apply to claims received by VA on or after the December 10, 2008 effective date.  As the Veteran's claim of entitlement to service connection for a left eye disability was received in February 2007, he may be entitled to a higher rating under the regulations in effect prior to December 10, 2008.  Notably, prior to December 10, 2008, chronic diseases of the eye listed at Diagnostic Codes 6000 through 6009 were rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology.  A minimum rating of 10 percent was to be assigned during active pathology.  38 C.F.R. § 4.84a, Diagnostic Codes 6000-6009 (2008). 

On remand, the Veteran should be scheduled for a new VA examination to evaluate his left eye disability.  The VA examiner should specifically comment on whether the Veteran has ever experienced an active stage of left eye toxoplasmosis at any point during the appeal period.  Since the claims file is being returned, it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran.  If no medical records are available, this should be noted in the Veteran's claims file.

2.  Then schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his service-connected left eye disability.  The claims folder and copies of all pertinent records should be made available to the examiner.  All indicated tests should be performed.  The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected left eye disability.  The examiner should specifically comment on whether the Veteran has ever experienced an active stage of left eye toxoplasmosis at any point during the appeal period.  The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. 

3.  After conducting any other development deemed necessary, readjudicate the Veteran's claim.  If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond.  The case should then be returned to the Board, if otherwise in order, for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).



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