Citation Nr: 1304366 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-34 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim for service connection for optic atrophy of the right eye. 2. Entitlement to service connection for vision disability of the right eye. 3. Entitlement to service connection for a psychiatric disorder. 4. Entitlement to an increased evaluation for lumbosacral strain with degenerative disc disease and degenerative joint disease, currently rated as 20 percent disabling. 5. Entitlement to an increased rating for right knee instability, currently rated as 10 percent disabling. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Gentry C. Hogan, Attorney at Law ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from January 1984 to December 1986, and from May 1991 to May 1995. These matters come before the Board of Veterans Appeals (Board) on appeal from September 2008 and April 2009 rating decisions by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In September 2010, the Veteran executed a VA Form 21-22a in favor of the private attorney reflected above. The Veteran failed to appear for a scheduled Board hearing via videoconference in January 2013. Good cause for his failure to appear is not shown. The issues of entitlement to service connection for a visual disability in the right eye, the increased rating claims for lumbosacral strain and right knee instability, and the issue of entitlement to a TDIU being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Service connection for optic atrophy of the right eye was denied in an unappealed April 2006 rating decision on the grounds that no nexus between service was shown; the denial became final in April 2007. 2. Evidence received since April 2007 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses the basis of the prior denial, and raises a reasonable possibility of substantiating the claim. 3. Aggravation of nonservice-connected mood disorder is attributable to service-connected lumbosacral strain, with degenerative disc and joint disease, and right knee instability. CONCLUSIONS OF LAW 1. The criteria for reopening a previously denied claim of service connection for optic atrophy of the right eye are met. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a) (2012). 2. The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is reopening the claim for service connection for optic atrophy of the right and eye, and granting service connected for a psychiatric disorder. Thus, the Board is granting in full the benefits sought on appeal with regard to these issues. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. New and Material Evidence In an April 2006 rating decision, service connection was denied for optic atrophy of the right eye and it was noted that, although private treatment records showed a gradual loss of vision in the right eye over several months in 1999, there was no evidence relating the Veteran's right eye optic atrophy to service. At the time of the April 2006 rating decision the pertinent evidence of record consisted of the Veteran's service treatment records and private treatment records. The Veteran did not file a notice of disagreement with the April 2006 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the April 2006 rating decision became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 20.1100. If, however, new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The pertinent evidence received since the April 2006 rating decision includes the Veteran's June 2008 claim in which he asserted that vision loss in his right is a result of chemical exposure while stationed at Camp Lejeune, North Carolina. An April 2008 private record notes sarcoidosis affecting the Veteran's central nervous system resulting in visual loss. An October 2008 report notes a gradual loss of vision in the right eye over several months in 1999; that several workups at that time were negative; and that he was not treated or seen again until 2007, at which time sarcoidosis was suspected. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), Id. at 118. Evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Since April 2006, the Veteran has asserted having had eye symptoms during service to the present. In addition, he raised a new theory of entitlement, alleging that his optic atrophy is related to chemical exposure during service at Camp Lejeune. The allegation raises the possibility of additional development which may assist the Veteran in substantiating his claim. Specifically, his allegations of exposure must be developed. New and material evidence having been received, reopening of the claim is warranted. III. Service Connection Criteria Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2001). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. §§ 3.303 , 3.304 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Except as provided in 38 C.F.R. § 3.300(c), disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). This includes an increase in disability. When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran filed his claim for service connection for a mood disorder in 2008. Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the decision in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In Allen, the U.S. Court of Appeals for Veterans Claims explained that under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a) when aggravation of a veteran's nonservice connected disability is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. In essence, the revised 38 C.F.R. § 3.310(b) indicates that the "rating activity" must determine the extent of the service-connected disability by establishing a "baseline" level of severity and subtracting it from the level of severity after aggravation occurred. The Veteran's service-connected disabilities are lumbosacral strain with degenerative disc and joint disease and right knee instability. Private treatment records reflect that he denied a past psychiatric history in October 2008 and a diagnosis of mood disorder due to a general medical condition was entered. The December 2008 VA examination report reflects a diagnosis of mood disorder due primarily to sarcoidosis and vision loss, and secondarily to knee and back pain. The examiner noted that the Veteran had never sought mental health treatment prior to the advancement of his sarcoidosis to the point of major visual impairment in recent months. Although the May 2009 opinion notes that quantification of the degree of aggravation more precisely than 'mildly' would be mere speculation, the examiner specifically concluded aggravation by service-connected back and right knee disabilities, at least on a partial basis. The Board has determined that there is a baseline level of severity for a nonservice-connected mood disorder established by competent medical evidence and attributable to service-connected lumbosacral strain with degenerative disc and joint disease and right knee instability, in part. Thus, a finding in favor of service connection for aggravation of a nonservice-connected mood disorder by service-connected lumbosacral strain with degenerative disc and joint disease and right knee instability is warranted. ORDER Reopening the claim of service connection for optic atrophy of the right eye is granted. Service connection for a psychiatric disorder is granted. REMAND In a June 2008 claim, the Veteran asserted that vision loss in his right eye is a result of service, to include chemical exposure while stationed at Camp Lejeune, North Carolina. The Veteran had two periods of active service. His DD Form 214 and service treatment records establish that he was stationed at Camp Lejeune during the second period of service. In recent years, the United States Navy and VA have acknowledged that persons residing or working at the Camp Lejeune from 1957 to 1987 were potentially exposed to contaminants present in the base water supply. The contaminants were the solvents perchloroethylene, tetrachloroethylene, and trichloroethylene, and are believed to have entered the base water supply after emerging from an off-base dry cleaning firm and leaking underground storage tanks. The United States Environmental Protection Agency has characterized trichloroethylene as carcinogenic to humans. VA Health Care Fact Sheet 16-9, published in November 2008, indicated that it was not clear that persons at the base were exposed to the chemicals at levels that would cause health problems. In a January 2012 Fact Sheet, it was noted that there are many unanswered questions as to the extent of the contamination of the water, the level of exposure of persons on the base, and the likelihood that exposure was great enough to result in particular diseases. VA has encouraged Veterans to file claims for any VA disability compensation for any injury or illness the Veteran believes is related to their service, including service at Camp Lejeune. VA is handling disability claims based on exposure to contaminated water at Camp Lejeune on a case-by-case basis. The October 1983 service entrance examination report in association with the first period of service shows the eyes were normal. The October 1983 report of examination reflects distant vision "pinhole" was 20/25 in the right eye and near visual acuity was 20/20. His eyes were assigned a profile of "2." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). A July 1985 record reflects complaints of itching, redness and decreased visual acuity in both eyes, and the impression was simple myopia astigmatism. A February 1986 eye evaluation reflects complaints of blurred vision at a distance, and the impression was simple myopia astigmatism. A May 1986 service treatment record reflects complaints of having injured his right eye in a fall. An abrasion of the right eye was noted to measure approximately 4-5 cm., and another abrasion about the same size was noted to be near his right eye. The October 1986 separation examination report shows the eyes were normal. Distant visual acuity was 20/25 in the right eye. An August 1990 Reserve examination report shows that the eyes were normal. Visual acuity in the right eye was 20/20. A May 1991 record shows unaided visual acuity in the right eye was 20/40. With respect to the second period of active service, a May 1992 "jump" examination report reflects distant visual acuity was 20/40 in the right eye. The March 1995 separation examination report reflects distant visual acuity was 30/30 in the right eye, and the following was noted in the significant or interval history section: MALARIA/JUNE 94 CARC PAINT CYTRAKLAEM LEAD IN WATER On the accompanying medical history, the Veteran noted difficulty focusing on small words or at a great distance, and in the physician's summary reported decreased visual acuity since the last examination. A February 2004 private medical record notes the Veteran's history of having gradually lost the vision in his right eye about five years earlier over a period of a few months. Work-ups at that time were noted to have been negative. Diagnoses entered in July 2004 and August 2004 included right eye optic neuropathy, right eye optic atrophy, glaucoma suspect, conjunctival melanosis, punctuate corneal epithelial erosions, and exotropia. An April 2008 private record notes sarcoidosis affecting the Veteran's central nervous system resulting in visual loss. An October 2008 report notes a gradual loss of vision in the right eye over several months in 1999; and that he was not treated or seen again until 2007, at which time sarcoidosis was suspected. To date the Veteran has not been afforded a VA medical examination in regard to a optic atrophy of the right eye, and in view of the evidence, the Board finds it necessary to afford the Veteran a VA medical examination regarding the nature, extent, and etiology of vision loss in the right eye. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the increased rating claims, the Veteran was most recently examined in connection with right knee instability in November 2008. The report of examination notes x-ray examination findings of the right knee in July 2007 and August 2007, and "mild to moderate" instability of the right knee was reported. An October 2008 private report of x-ray examination of the right knee reflects an impression of degenerative changes of the right knee, and features most likely reflecting underlying osteoarthrosis. A veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. A January 2009 record in association with a Social Security Administration (SSA) determination reflects use of a cane needed for going up and down stairs, postural limitations to include climbing stairs and ladders, stooping, kneeling, crouching and crawling. In addition, the Veteran's spouse in December 2011 stated that the Veteran is no longer able to go for a walk with the family due to knee pain. Given the passage of time, the medical evidence, and the statement of the Veteran's spouse indicating a worsening of the knee condition, updated findings are required. The Veteran has argued that his service-connected disabilities have an impact on his ability to obtain and retain substantially gainful employment. The assignment of an initial rating for a psychiatric disorder and the open question of service connection for right eye loss of vision are inextricably intertwined with that of TDIU. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA eye examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to accomplish all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that disease or injury to the right eye resulting in vision los and/or optic atrophy, or any other eye disability found to be present, was first manifested during service, or within the initial year after separation or is otherwise a result of events during service, including exposure to contaminated drinking water and/or chemicals at Camp Lejeune. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a VA spine examination. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The current extent of impairment, to include that associated with any flare-ups, must be described. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA joints examination. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must describe in detail the current status of the Veteran's service connected right disability. Arthritis/limitation of motion, instability, and subluxation must be specifically addressed, and the impact of pain, weakness, fatigue, lack of endurance, and incoordination with repetitive motion must be described with regard to actual functional capacity. 4. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits remain denied issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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. 2011). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs