Citation Nr: 1210406 Decision Date: 03/20/12 Archive Date: 03/30/12 DOCKET NO. 01-07 119A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension (HTN). 2. Whether new and material evidence has been submitted to reopen a claim for service connection for glaucoma of the right eye. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right eye injury with glaucoma, claimed as due to VA medical treatment in December 2002. 4. Entitlement to special monthly compensation (SMC) based on loss of use of the right eye due to glaucoma. 5. Entitlement to special home adaption under 38 U.S.C.A. § 2101(b) (West 2002 & Supp. 2011). 6. Entitlement to automobile and adaptive equipment or for adaptive equipment only. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2011). The Veteran served on active duty from April 1951 to April 1954 and from May 1956 to September 1963. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2008, the Board remanded the claim for additional evidentiary development, to include a contemporaneous eye examination to determine the nature and etiology of any residuals of the placement of a filter with mitomycin C on the right eye in December 2002. The claim has now been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. In January 1984, the RO determined that service connection was not warranted for HTN or for glaucoma. In August 1992, the RO determined that new and material evidence had not been received that was sufficient to reopen the claims. The Veteran was notified of his procedural appellate rights in a letter that same month. He, however, did not appeal the decision. 2. Evidence submitted since the August 1992 RO decision either does not bear directly and substantially upon the specific matters at hand, is cumulative or redundant, or it is not by itself or in connection with evidence previously assembled so significant that it must be considered in order to fairly decide the merits of the claims of service connection for HTN or for glaucoma. 3. The Veteran's right eye condition, to include glaucoma, was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. 4. The Veteran is not service-connected for loss of use of the right eye due to glaucoma. 5. The Veteran is service-connected for status post total right knee replacement, schizophrenia, a scalp scar, and intertrigo of the groin. 6. The Veteran's service-connected disabilities do not involve the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, permanent blindness in an eye, or ankylosis of the hips or knees. 7. The Veteran does not have loss of use of a lower extremity or of both hands or blindness due to a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claims of entitlement to service connection for HTN or for right eye glaucoma has not been received. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104(a), 3.156(a) (2001, 2011). 2. The criteria for compensation under 38 U.S.C.A. § 1151 for a right eye disability, to include glaucoma, claimed as due to treatment at a VA medical facility, have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.358 (2011). 3. The criteria for SMC for loss of use of the right eye due to glaucoma have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 1114 West 2002 & Supp. 2011); 38 C.F.R. §§ 3.350, 3.353 (2011). 4. The criteria for special home adaptation have not been met. 38 U.S.C.A. §§ 2102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.809 (2011). 5. The criteria for automobile and adaptive equipment or for adaptive equipment only have not been met. 38 U.S.C.A. §§ 3901, 3902, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.808 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in October 2002, September 2003, March 2006, May 2006, October 2006, April 2007, August 2009, November 2009, and June 2010), in totality, specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Additionally, as to the claims regarding whether new and material evidence has been received to reopen the previously denied claims of service connection for HTN and glaucoma, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a Claimant of the evidence and information that is necessary to reopen the claim and VA must notify the Claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the present case, the Veteran has been notified of the evidence and information necessary to reopen the claim and to establish entitlement to the underlying claim for benefit sought in the March 2006 VCAA letter mentioned above. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in correspondence dated in March 2006 and in the VCAA letters dated in April 2007 and August 2009. HTN and Glaucoma The RO initially denied service connection for HTN and glaucoma in January 1984. These denials were confirmed and continued in August 1992, and the Veteran did not file a notice of disagreement (NOD) with either decision. In an August 1992 letter, the Veteran was notified of the denials and of his procedural and appellate rights. He did not appeal either decision and they are final. 38 U.S.C.A. § 7105(a) (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.302, 20.1103 (2011). Decisions of the RO are final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2011). However, if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002). Specifically, under 38 C.F.R. § 3.156(a), new and material evidence is defined as evidence not previously submitted to agency decisionmakers 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. The Board notes that the regulations were also recently amended to define "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). However, these regulations are effective prospectively for claims filed on or after August 29, 2001, and are therefore not applicable in this case as the Veteran's claim to reopen was filed prior to August 29, 2001. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In effect, the Veteran filed to reopen previously denied claims in July 2001. The matters under consideration are whether HTN or glaucoma were incurred in or aggravated during the Veteran's active military service or are otherwise related to service. In order for these claims to be reopened, evidence must be presented or secured since the 1992 determination which is relevant to, and probative of, the matters under consideration. The evidence associated with the claims file subsequent to the August 1992 decision includes the Veteran's testimony at hearing in February 2002 and April 2008. Also added to the record were duplicates of records previously considered, and additional postservice private and VA treatment records dated from 1992 to the present day. These records included numerous VA examination reports, primarily conducted to determine if there were any eye injury residuals as a result of VA treatment in December 2002. The medical records submitted reflect treatment for various conditions, to include HTN and glaucoma. These diagnoses continue to the present day. This evidence is not new. Statements and testimony submitted subsequent to the 1992 RO denial are presumed to be true, see Justis v Principi, 3 Vet. App. 510, 513 (1992). However, in this case, his statements and testimony are repetitive of previous statements which were previously considered by the RO in 1992, and are therefore not new. Essentially, his contentions remain the same and that is that his HTN and glaucoma are of service origin. Such was contended at the time of the previously denied claims in 1992. Moreover, while his contentions as to etiology of these conditions have been considered, and while he is competent as a lay person to report on that which he has personal knowledge, see Layno v. Brown, 6 Vet. App. 465, 470 (1994), there is no evidence of record that he has specialized medical knowledge to be competent to offer medical opinion as to cause or etiology of the claimed disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, in addition to not being new, his statements/testimony and annotations are not material to the issue. See Routen v. Brown, 10 Vet. App. 183, 186 (1997). Post service treatment records added to the file since 1992 do show treatment for HTN and glaucoma post service, but this was known at the time of the previous denial. These conditions are not attributed to any incident of military service by medical personnel. While these records were not previously considered in 1992, they do not represent competent evidence that the Veteran's current HTN or glaucoma are of service origin. Instead, they suggest that these conditions were initially reported many years after service and that he has continued to be treated for such over the years. As a result, the Board concludes that the evidence submitted in support of the claim of service connection for HTN and glaucoma since the 1992 RO decision is cumulative of evidence previously considered or does not bear directly and substantially upon the issues at hand, and in connection with the evidence previously considered of record, is not so significant that it must be considered in order to fairly decide the merits of the claims. The Board concludes that the evidence received since the August 1992 denial of service connection for HTN and glaucoma is not new and material, and the claims are not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2011). Right Eye Injury with Glaucoma, Claimed as Due to VA Medical Treatment in December 2002 Where a Veteran suffers an injury or aggravation of an injury as a result of VA medical treatment, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2011). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2011). In order for the disability or death to qualify for compensation under 38 U.S.C.A. § 1151, the disability or death must not have been the result of the Veteran's willful misconduct, and must have been caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the VA hospital care, medical or surgical treatment, or examination that proximately caused the disability or death, must have been careless, negligent, lacked proper skill, or involved an error in judgment, or an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2011). The additional disability or death must not merely be coincidental with the VA hospitalization, medical, or surgical treatment. Finally, proof of aggravation, in the absence of evidence satisfying the causation requirement, will not suffice to make the additional disability or death compensable. 38 C.F.R. § 3.358(c)(1)(2) (2011). In determining whether additional disability exists, the Veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with his physical condition subsequent thereto. With regard to medical or surgical treatment, the Veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358(b) (2011). As already noted, service connection has been denied for glaucoma as this condition was not of service onset. Specifically, it has been determined that this eye disorder was not shown in service or until many years thereafter. Post service treatment records show diagnosis of glaucoma in 1975 at a private facility. Subsequently dated records include continuation of this condition. The Veteran underwent surgery (filter with mitomycin) on the right eye in December 2002. After surgery, he incurred a hemorrhage which was noted to have been corrected in January 2003. His vision at time of surgery was noted to be 20/200 and in January 2003, it was 20/200. Subsequently dated records show, however, that shows his right eye demonstrated only light perception in 2003. VA treatment records in 2005 refer to his legal blindness secondary to glaucoma. In August of that year, he was seen by a blind rehab specialist for activities of daily living to regain his independence. He completed the course on in September 2005. The Veteran's right eye legal blindness diagnosis continued. In December 2010, the Board remanded the claim for an examination to ascertain the nature and etiology of any residuals of the December 2002 placement of a filter with mitomycin C on the right eye. The examiner reviewed the entire claims file. Physical examination showed that visual acuity in the right eye, was "far no light perception, near no vision." The final diagnoses included open angle glaucoma, status post glaucoma filtering procedure with tenectomy and mitomycin-C on the right. Refractive error and presbyopia were also noted. (It is noted that service connection for constitutional and development eye conditions, to include presbyopia, was denied by the RO in May 1964). The examiner noted that a medical opinion had been requested concerning surgical care by the VA. She noted that the surgical care for the Veteran was supervised by the glaucoma specialist on staff. The blab formation and choroidal hemorrhage resolved and the pressures were controlled at 11 as of January 22, 2003. There was no carelessness, negligence, lack of proper skills, error in judgment, or similar instance of fault on the part of the VA in furnishing treatment, or the result of an event not reasonably foreseeable. The choroidal hemorrhage is a known but uncommon complication of glaucoma surgery and is not predictable. The subsequent decrease in vision could also not be predicted. She further noted that while the Veteran had also had glaucoma surgery in the left eye without complications, he had lost vision in that eye also, even though not to the extent that he was completely blind. In an April 2011 addendum, she reiterated that she had reviewed the claims file in forming her opinion. In this case, the preponderance of the evidence suggests that the Veteran's right eye disability is not the result of VA error or negligence. It is his argument that the post surgical decline in his visual acuity resulted because of VA medical treatment in December 2002. However, the only medical evidence addressing this question resulted in an opinion that the surgery did not cause the decline. Further, the diagnosed eye disability of glaucoma has not been shown to be related to VA error or negligence as this condition existed many years prior. Because the competent evidence does not show a causal relationship between VA treatment and any of the Veteran's eye symptomatology, the Board concludes that the Veteran does not have an additional disability that was caused or aggravated by VA care. Similarly, there is no competent evidence that VA otherwise exhibited carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. In the absence of any such competent evidence, compensation under 38 U.S.C.A. § 1151 must be denied. To the extent that the Veteran ascribes his eye disability to VA medical care, as a layperson, the Veteran is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SMC Special monthly compensation (SMC) is a special statutory award in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114(k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. SMC under 38 U.S.C.A. § 1114(k) is payable under certain circumstances, including if the Veteran, as the result of service-connected disability, has suffered the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, permanent blindness in an eye, or ankylosis of the hips or knees. In this case, records reflect that the Veteran is now wheelchair bound due to his disabilities, to include status post total right knee replacement for which service connection is in effect at 60% disabling, and for legal blindness in the right eye which is not a service-connected condition. However, his right knee replacement (or any of his other service-connected conditions) does not involve the loss or permanent loss of use of one or both feet, the loss or permanent loss of use of one or both hands, permanent blindness in an eye, or ankylosis of the hips or knees. As such, he has no legal entitlement to SMC, even if he does have a significant right knee condition and is blind in the right eye. Consequently, this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). Special Home Adaptation and Automobile and Adaptive Equipment and/or AdaptiveEquipment only The Veteran is seeking entitlement to financial assistance in acquiring a special home adaptation grant due to loss either due to the loss of use of a lower extremity (right knee replacement) and loss of vision in the right eye that requires him to use a wheelchair. He is also seeking entitlement to an automobile and/or adaptive equipment on the same basis. As noted above, service connection is in effect for the status post total right knee replacement but not for any eye disorders, to include glaucoma. He is also service-connected for schizophrenia (50%), a scar of the scalp (10%), and for intertrigo of the groin (0%). It is noted that the Veteran was noted to be in a wheel chair in 2002. In addition to his service-connected conditions, it is recognized that he has significant vision problems in both eyes. Ankylosis as a result of the right knee condition is not indicated and his vision loss is not the result of a service-connected disability or due to VA treatment. The Veteran can qualify for a grant for necessary special home adaptations if he has compensation based on permanent and total service-connected disability which is due to one of the following: (1) blindness in both eyes with 5/200 visual acuity or less; or (2) includes the anatomical loss or loss of use of both hands. The assistance referred to in this section will not be available to any Veteran more than once. 38 C.F.R. § 3.809a (2011). As the foregoing regulation suggests, entitlement to the claimed benefit is predicated on a finding that the disability is service connected. The Veteran's service connected disabilities do not reflect evidence of loss or permanent loss of use of one or both hands or feet or permanent impairment of vision of both eyes as a result of it. Although there is evidence that the Veteran is essentially confined to a wheelchair, this is primarily due to nonservice-connected residuals. No medical opinion or other competent evidence to the contrary has been submitted. The Veteran also does not qualify for a grant for necessary special home adaptations, as he does not have compensation based on permanent and total service-connected disability which is due to blindness in both eyes with 5/200 visual acuity or less, or includes the anatomical loss or loss of use of both hands. Given the foregoing, there is no legal basis for the grant of specially adapted housing or a special home adaptation grant. Accordingly, the claim must be denied as a matter of law. Sabonis, supra. To be eligible for financial assistance in purchasing an automobile or other conveyance, a Veteran must establish that he has a loss or permanent loss of use of one or both feet; loss or permanent loss of use of one or both hands; or permanent impairment of vision of both eyes. The visual impairment must be corrected to 20/200 or less in the better eye, or visual acuity of more than 20/200 with a limitation of peripheral vision to a field no greater that 20 degrees. Further, the disorder must be service-connected. 38 U.S.C.A. § 3902(a)(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.808 (2011). Additionally, a Veteran who is not eligible for assistance under the foregoing criteria may nevertheless be entitled to adaptive equipment if he is service-connected for ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808(b)(1)(iv) (2011). However, as shown above, while the Veteran is shown to be service-connected for a total right knee replacement, ankylosis is not applicable in such cases. And, his vision problems have been found to be nonservice related. Thus, the evidence of record shows that the Veteran does not meet the criteria for automobile and adaptive equipment or adaptive equipment only. Accordingly, the claim must be denied as a matter of law. Sabonis, supra. ORDER New and material evidence has not been received to reopen a claim for service connection for HTN. New and material evidence has not been received to reopen a claim for service connection for glaucoma. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right eye injury with glaucoma, claimed as due to VA medical treatment in December 2002 is denied. Entitlement to SMC based on loss of use of the right eye due to glaucoma is denied. Entitlement to special home adaption under 38 U.S.C.A. § 2101(b) is denied. Entitlement to automobile and adaptive equipment or for adaptive equipment only is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs