Citation Nr: 0810300 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-43 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye condition listed as glaucoma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1944 to May 1946. He received numerous awards, including the Combat Infantryman Badge. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the White River Junction, Vermont, Department of Veterans Affairs (VA) Regional Office (RO) which determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for an eye condition listed as glaucoma. The veteran indicated in his December 2004 substantive appeal (VA Form 9) that he wanted a Travel Board hearing; however, he withdrew his request by correspondence dated in January 2005. See 38 C.F.R. § 20.704(e) (2007). The veteran's case has been advanced on the Board's docket pursuant to the provisions of 38 C.F.R. § 20.900(c) (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a January 1947 rating decision, the RO denied service connection for impaired vision. The basis for the decision was that impaired vision was noted at induction into service and there was no evidence of any permanent increase in severity (i.e., aggravation) during service or at time of discharge. The veteran did not file an appeal. 38 C.F.R. § 20.200 (2007). Therefore, that decision is final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104; 20.1103 (2007). The law and regulations provide that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unsubstantiated fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2007). The record reflects that the veteran was granted service connection for a right hand injury in October 2000. The rating decision noted that although the service treatment records were negative for any evidence of this injury, given that the veteran's DD 214 confirmed combat status, his statements that he injured his right hand in combat during the Battle of the Bulge were accepted under 38 U.S.C.A. § 1154(b). Regarding the current claim, the veteran contends that he incurred a left eye injury at the same time he injured his right hand. In his Written Brief Presentation, filed in December 2007, the veteran's representative argued that the veteran should be granted service connection for his eye condition on the same basis as that used to grant service connection for his right hand, namely 38 U.S.C.A. § 1154. The representative went on to state: Furthermore, the veteran had rightly pointed out that the VA erred in 1947 when they claimed a lack of worsening of his eye condition during his time in service. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132. The veteran was not noted to need corrective lenses on induction. The Board construes the representative's argument as raising a claim of whether there was clear and unmistakable error (CUE) in the January 1947 rating decision denying service connection for impaired vision. Because a finding of CUE in a prior rating action could render moot the new and material claim on appeal, the Board finds that the CUE claim is inextricably intertwined with the claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision can not be rendered unless both are adjudicated). Because the CUE issue is inextricably intertwined with the new and material issue, the case must remanded for initial RO adjudication of the CUE matter. See Huston v. Principi, 18 Vet. App. 395 (2004). Therefore, on remand, the RO should adjudicate the newly raised claim for CUE. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105(West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007). Accordingly, the case is REMANDED for the following action: The RO should determine whether the January 1947 rating decision, which denied service connection for impaired vision, contains CUE. Thereafter, the veteran and his representative should be provided with written notice of the determination and they must be provided with notice of the veteran's right of appeal. If the benefit sought on appeal is not granted to the veteran's satisfaction, or if a timely notice of disagreement is received with respect to any additional issue raised on behalf of the veteran, the RO should furnish a statement of the case and/or a supplemental statement of the case on all issues in appellate status, and the veteran and his representative should be provided an opportunity to respond in accordance with applicable statutes and regulations. The case should be then returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion, either factual or legal, as to the final outcome warranted. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2007). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).