Citation Nr: 1130516 Decision Date: 08/17/11 Archive Date: 08/29/11 DOCKET NO. 09-21 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied service connection claim for an eye disorder. 2. Whether new and material evidence has been received to reopen a previously denied service connection claim for a psychiatric disorder. WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from July 1954 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In the decision below, the Board will find that sufficient evidence is of record to reopen the Veteran's claims for service connection. These issues will then be addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In October 2005, the Veteran filed an original service connection claim for an eye disorder. 2. In an unappealed June 2006 rating decision, the RO denied the Veteran's claim to service connection for an eye disorder. 3. In April 2007, the Veteran filed a claim to reopen his service connection claim for an eye disorder. 4. In the August 2007 rating decision on appeal, the RO denied the Veteran's claim to reopen his service connection claim for an eye disorder. 5. The record contains new and material evidence pertaining to the Veteran's service connection claim for an eye disorder. 6. In October 2005, the Veteran filed an original service connection claim for a psychiatric disorder. 7. In an unappealed June 2006 rating decision, the RO denied the Veteran's claim to service connection for a psychiatric disorder. 8. In April 2007, the Veteran filed a claim to reopen his service connection claim for a psychiatric disorder. 9. In the August 2007 rating decision on appeal, the RO denied the Veteran's claim to reopen his service connection claim for a psychiatric disorder. 10. The record contains new and material evidence pertaining to the Veteran's service connection claim for a psychiatric disorder. CONCLUSIONS OF LAW 1. A June 2006 rating decision that denied the Veteran's claim to service connection claim for an eye disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2010). 2. New and material evidence has been received to reopen the Veteran's claim of service connection for an eye disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. A June 2006 rating decision that denied the Veteran's claim to service connection claim for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2010). 4. New and material evidence has been received to reopen the Veteran's claim of service connection for a psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 At the outset, the Board notes that while the VA may not be in complete compliance with every aspect of the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002) (VCAA) with respect to the Veteran's claims to reopen, the Board has determined that the evidence supports a grant of the benefits sought. Consequently, any lack of notice and/or development under the VCAA cannot be considered prejudicial to the Veteran, and remand for such notice and/development would be an inefficient use of VA time and resources. II. The Claims to Reopen the Claims for Service Connection In October 2005, the Veteran claimed service connection for eye and psychiatric disorders. The RO initially denied the Veteran's claims in a June 2006 rating decision. The Veteran did not appeal that decision so the decision became final See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2010). In April 2007, the Veteran submitted a statement to the RO in which he detailed experiences during service that led to eye and psychiatric disorders. The Veteran did not refer to the June 2006 rating decision so the RO did not construe the Veteran's statement as a notice of disagreement against that decision. 38 C.F.R. § 20.201. Rather, the RO construed the new statement as a claim to reopen the two claims denied in June 2006. In the August 2007 rating decision on appeal, the RO denied the Veteran's claims to reopen the service connection claims. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). Where a service connection claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C.A. § 5108. The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal regardless of the RO's determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). To address the merits of the Veteran's underlying service connection claims therefore, the Board must first decide whether VA has obtained new and material evidence since the final rating decision in June 2006 that denied the Veteran's claims to service connection. VA regulation defines "new" evidence as existing evidence not previously submitted to agency decision makers. "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or redundant. Id. Again, the RO denied the Veteran's claims to service connection in June 2006. To determine whether new and material evidence has been submitted since then, the Board must compare the evidence of record at the time of that decision with the evidence of record received since that decision. The relevant evidence of record in June 2006 consisted of service personnel records, service treatment records noting vision problems in June 1956, and VA treatment records dated between 1999 and 2006, which note optometric and psychiatric evaluations. In sum, the evidence in June 2006 indicated that the Veteran had current eye and psychiatric disorders. But no medical evidence of record indicated that the Veteran's disorders related to his service. As such, the RO denied the Veteran's claims. Again, that decision became final. It is therefore not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The evidence that must be considered in determining whether there is a basis for reopening the Veteran's claims is relevant evidence that has been added to the record since the final June 2006 decision. Since that decision, the relevant information added to the record consists of VA treatment records dated from August 2004 to May 2010, which note mental health treatment. Since June 2006, the record has also included assertions from the Veteran in the April 2007 statement noted earlier, and in transcripts of his November 2009 hearing before the RO, and his January 2011 hearing before the Board. The evidence submitted since June 2006 is new evidence in the claims file. It has been included in the claims file since the June 2006 final rating decision that denied the Veteran's claims to service connection for eye and psychiatric disorders. The Board finds, moreover, that certain of this new evidence is material evidence as well. In particular, the Board finds certain of the Veteran's statements to be material evidence. In the April 2007 statement, the Veteran detailed the way in which he believes he incurred an eye disorder during service as a result of his duties involving reconnaissance photo interpretation and analysis. In this statement, the Veteran also described the way in which he believes he incurred a psychiatric disorder while working along flight lines. During his hearings before the RO and Board, the Veteran described his in-service duties developing reconnaissance photographs, which he believes led to his vision problems. He indicated that, since separation from service, he has experienced a disabling hypersensitivity to light. During these hearings, he also described the way in which he developed a psychiatric disorder. He testified that three years serving with a mobile reconnaissance unit, with the unstable nature of its mission, led to mental stress and illness. In assessing the new evidence, the Board notes that laypersons are generally not capable of opining on matters requiring medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Indeed, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this matter, the Veteran's statements regarding visual and psychiatric problems during and since service are of probative value because symptoms associated with his disorders are observable. While he may not be competent to diagnose what problems he had, or has, or what caused the problems, is he competent to testify regarding what and how he saw, and how he felt. As such, the new evidence pertains to the essential issue here, which is whether the Veteran incurred his disorders during service. See 38 C.F.R. § 3.303. When considered with previous evidence of record, the new evidence relates to an unestablished fact necessary to substantiate each claim. The evidence is therefore material as well as new. 38 C.F.R. § 3.156. Accordingly, the Veteran's claims to reopen are granted. The next question is whether the Board is permitted to conduct a de novo review at this time. See Bernard v. Brown, 4 Vet. App. 384 (1994) (in assessing claims to reopen, the Board must determine whether the Veteran has been given adequate notice of the need to submit evidence or argument on that question, and an opportunity to address the question at a hearing, and, if not, whether the Veteran is prejudiced thereby). In this matter, the Board finds a remand appropriate for additional medical inquiry. ORDER 1. New and material evidence having been submitted, the claim for service connection for an eye disorder is reopened; to this extent, the appeal is allowed. 2. New and material evidence having been submitted, the claim for service connection for a psychiatric disorder is reopened; to this extent, the appeal is allowed. REMAND VA compensation examinations should be provided to the Veteran for his claims for service connection. 38 U.S.C.A. § 5103A. Moreover, the Veteran indicated during his hearing before the Board that he has been receiving disability benefits from the Social Security Administration (SSA). Records pertaining to such benefits should be included in the claims file. 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) (2010). Expedited handling is requested.) 1. The RO should include in the claims file records pertaining to any SSA disability benefits the Veteran may receive. 2. The Veteran should be scheduled for VA examinations with appropriate specialists to determine the nature, severity, and etiology of the Veteran's eye and psychiatric disorders. The claims file must be made available to and reviewed by each examiner in conjunction with each examination, and each examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The Veteran's complaints should be recorded in full. 3. Each examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's disorder (eye or psychiatric) relates to service. 4. The RO should then readjudicate the issues on appeal. If a determination remains unfavorable to the Veteran, the RO should issue a SSOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue(s). An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). These claims 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. 2010). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs