Citation Nr: 18139658
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 18-39 004
DATE:	September 28, 2018
REMANDED
Entitlement to an initial compensable rating for left eye pterygium is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from June 1958 to June 1960.
In January 2014, the Board remanded the matter of entitlement to an initial compensable rating for left eye pterygium for the Agency of Original Jurisdiction (AOJ) to issue a statement of the case (SOC), pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).
In a January 2015 written statement, the Veteran raised the issue of entitlement to a TDIU rating in the context of his pending appeal for an initial compensable rating for left eye pterygium.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).
Following a July 2018 SOC addressing the issue of entitlement to an initial compensable rating for left eye pterygium, the Veteran perfected his appeal of that issue by filing a VA Form 9 in July 2018.  The Board finds that the TDIU claim is part and parcel of the increased rating claim that is currently on appeal.
REFERRED
Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a).  When such a communication is received, VA shall notify the claimant and the claimant’s representative of the information necessary to complete the application form or form prescribed by the Secretary.  38 C.F.R. § 3.155(a).
An April 2017 written statement from the Veteran appears to raise the issues of entitlement to service connection for hearing loss, entitlement to service connection for posttraumatic stress disorder (PTSD), and entitlement to a higher rating for his service-connected right shoulder disability.  However, this April 2017 submission does not meet the standards of a complete claim for benefits.
Since the Board does not have jurisdiction over these matters, they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b).
1. Entitlement to an initial compensable rating for left eye pterygium.
The current appeal originates from the Veteran’s October 2006 claim for service connection for a left eye disability, which was granted at a 0 percent rating (effective October 3, 2006) in an October 2012 rating decision; the Veteran has perfected his appeal of the initial rating assigned.  The Board notes that the October 2006 claim document requires translation from Spanish into English, which should be accomplished on remand.
The Veteran’s most recent VA eye examination was conducted in April 2015, with an addendum VA medical opinion obtained in August 2015.  In addition, the most recent VA treatment record in the claims file is dated in August 2015.
Effective May 13, 2018, VA revised the criteria for rating disabilities of the organs of special sense (including eyes).  See 83 Fed. Reg. 15,321-322 (Apr. 10, 2018).
In a September 2018 brief, the Veteran’s representative noted that the Veteran had not been examined for his left eye pterygium in more than three years and asserted that he “needs to be re-examined” at this time.
On remand, after all outstanding treatment records have been obtained, a new VA eye examination should be scheduled in order to ascertain the current level of severity of the Veteran’s service-connected left eye pterygium, as there is an indication that the current record does not adequately reflect the severity of his condition.  The examiner should give consideration to all applicable versions of the pertinent rating criteria.
2. Entitlement to a TDIU rating.
As noted above, in a January 2015 written statement, the Veteran raised the issue of entitlement to a TDIU rating in the context of the claim for an initial compensable rating for left eye pterygium that is currently on appeal.  See Rice, 22 Vet. App. at 447.  Specifically, the Veteran alleged therein that “[TD]IU” was supported by an accompanying January 2015 statement from a private physician which opined that the Veteran’s service-connected disabilities [which include his left eye pterygium] “significantly affect his ability to perform in a competitive work environment.”  [Thereafter, an April 2015 VA treatment record confirmed that the Veteran was a “retired employee” and therefore not currently working.]
A remand of the TDIU rating claim is required in order for the Veteran to be notified of the requirements to establish a claim for a TDIU rating, and for him to be requested to complete a formal claim (VA Form 21-8940).  The AOJ should complete any necessary development for this claim.
The matters are REMANDED for the following actions:
1. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating.  Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate a claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA.  The Veteran should also be asked to complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability.
2. Translate the Veteran’s October 2006 claim document from Spanish into English, and then associate the translated document with the claims file.
3. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his service-connected left eye pterygium during the appeal period.  Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile.
4. Obtain the Veteran’s VA treatment records for the period from May 2015 to the present.
5. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left eye pterygium.  The electronic claims file must be made available to the examiner for review in conjunction with the examination.  All necessary tests should be performed and the results reported.  All pertinent symptomatology and findings must be reported in detail.  Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible.  The examiner should consider all applicable versions of the pertinent rating criteria.
6. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim on appeal for entitlement to an initial compensable rating for left eye pterygium, followed by adjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the increased rating claim and including whether extraschedular referral is warranted).  If any benefit sought on appeal remains denied, in whole or in part, a supplemental SOC (SSOC) must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. B. Yantz, Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.