Citation Nr: 1300799 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-47 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral loss of vision. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from May 1967 to March 1972, with extended periods of unauthorized absence including a period from December 1969 to June 1971. He served in Vietnam from October 1967 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Los Angeles, California. In July 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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 his VA Form 9, dated in December 2009, the Veteran asserted that the RO committed clear and unmistakable error (CUE) in its 1973 and 2006 rating decisions. Adjudication of the CUE claim may impact the NME claim; thus, any adjudication of the NME claim by the Board at the present time would be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.) aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds 132 S. Ct. 75 (U.S. Oct. 3, 2011). Therefore, under the circumstances, the appropriate action is to remand the CUE issue to the agency of original jurisdiction for adjudication. The evidence of record reflects that the Veteran had several periods of unauthorized absence and/or desertion in 1968, 1969, and 1970, to include from December 1969 to approximately June 1971. While absent, the Veteran was blinded after having a substance thrown in his eyes, in approximately May 1971. In a March 1973 rating decision, the RO denied the Veteran entitlement to service connection for bilateral eye disability because the injury did not occur in the line of duty. In a June 2006 rating decision, the RO denied the Veteran's claim to reopen the previously denied claim. Under 38 C.F.R. § 3.1 (m), requirements as to line of duty are not met if at the time the injury was suffered or disease contracted, the Veteran was avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty. In statements dated in August 2009 and December 2009, the Veteran asserted that he was not mentally sound at the time of his desertion, and he should, therefore, not be barred from service connection. Under VAOPGCPREC 18-90 (June 13, 1990) (Line-of-Duty Determination - - Unauthorized Absence), the VA General Counsel concluded that an injury or disease incurred while in deserter status or absent without leave (AWOL) by a person claiming disability benefits, where such person is determined to have been insane at the time the person deserted or was AWOL, may, if otherwise appropriate, be deemed under 38 U.S.C.A. § 105(a) to have been incurred "in the line of duty" and "not the result of the person's own misconduct." The evidence of record includes a statement by Dr. P.G., dated in March 2009, in which he stated that the Veteran was "blinded in 1971 while on temporary leave from the Naval Hospital where he was hospitalized after removal from Vietnam due to a friendly fire incident that caused a mental breakdown . . ." The examiner also noted that the Veteran was "not himself in 1971 and is not today". The Board notes that the statements as to temporary leave, hospitalization, and removal from Vietnam due to a mental breakdown, are not supported by the evidence of record. However, the statement does reflect the opinion of the examiner that the Veteran has a current mental disability. In addition, the Veteran is service-connected for posttraumatic stress disorder (PTSD). The claims file also includes a June 2006 report from Dr. I.A. It reflects that the Veteran reported that his mental problems began in 1973 (after separation from service). The Veteran reported two suicide attempts in the 1970s, psychiatric emergency room visits, and four psychiatric hospitalizations, the most recent in December 2005. The report also reflects that the Veteran reported that he previously had received Social Security Administration (SSA) benefits. An August 2000 VA clinical record reflects that the Veteran reported that he was hospitalized in 1994 at the Long Beach VA after a suicide attempt. A July 2005 VA clinical note reflects that the Veteran reported being hospitalized three to four times. The evidence of record reflects that the Veteran was diagnosed with an emotionally unstable personality in June 1968, with no psychiatric treatment deemed necessary; there is no evidence in his STRs that he was insane at the time of his desertion. The Board finds that VA should attempt to obtain all treatment records and SSA records pertinent to the Veteran's mental health as such records, if any, may reflect the Veteran's mental status in the year after separation from service and be probative of his mental status at the time of his unauthorized absence, and prior to his blindness. Accordingly, the case is REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received mental health/psychiatric treatment, and to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for each mental health medical treatment provider identified, to include all emergency room treatment and all hospitalizations. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records. The RO must also attempt to obtain all pertinent VA treatment records, to include records from an alleged hospitalization at Long Beach VA Medical Center in approximately 1994. 2. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision. 3. Adjudicate the issue of whether there was clear and unmistakable error (CUE) in March 1973 and June 2006 RO decisions which denied entitlement to service connection for bilateral loss of vision on the basis that the Vetran was a deserter or AWOL when the injury was sustained. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202 and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. If a timely substantive appeal is filed, the issue should be returned to the Board for further appellate consideration, if appropriate. 4. Thereafter, after completing any additional necessary development, readjudicate the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral loss of vision. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. The appellant 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. 2012). _________________________________________________ MICHAEL MARTIN 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) (2012).