Citation Nr: 1309934 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-17 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral glaucoma. 2. Entitlement to a compensable rating for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975; from September 1975 to September 1979; and from September 1986 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which, in pertinent part, continued the noncompensable rating for bilateral hearing loss and found that new and material evidence had not been received to reopen the service connection claim for glaucoma. The Veteran did not file a notice of disagreement (NOD) with an April 2007 rating denying service connection for glaucoma. See 38 C.F.R. §§ 20.200, (providing, in pertinent part, that an appeal consists of a timely filed NOD in writing), 20.201 (required contents of NOD) (2012). Nevertheless, that decision is not final, and the Veteran's original service connection claim for glaucoma remains active and is properly on appeal before the Board. Specifically, under 38 C.F.R. § 3.156(b) (2012), if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period," and thus prevents an initial determination from becoming final. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after an RO decision rendered the RO decision nonfinal); 38 C.F.R. § 3.400(q) (2012) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). Applying subsection 3.156(b) to the facts of this case, the Board finds that new and material evidence has been associated with the claims file within the one-year appeal period following the May 2007 mailing of the April 2007 rating decision. See 38 C.F.R. § 20.302(a) (2012) (providing, in pertinent part, that a NOD must be submitted within one year from the date that notice is mailed to the claimant of the determination by the agency of original jurisdiction). The April 2007 rating decision denied service connection for glaucoma because there was no competent evidence of record showing that the Veteran had a current diagnosis of glaucoma. However, there is a February 2007 VA treatment record reflecting a diagnosis of "PGOA" (primary chronic open-angle glaucoma), which was associated with the file in October 2007. This record was in fact constructively before VA adjudicators at the time of the April 2007 rating decision even if not associated with the file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Moreover, a November 2007 VA examination report states that the Veteran had a past history of glaucoma. Evidence more recently associated with the file, including private treatment records dated in January 2007 and July 2007, and a December 2008 VA treatment record, confirms a diagnosis of glaucoma. The February 2007 VA treatment record and November 2007 VA examination report fall within the one-year appeal period, which was from May 2007 to May 2008. See 38 C.F.R. § 20.302(a). They are new to the file and support the previously unestablished element of a current diagnosis of glaucoma. Although these records do not address whether the Veteran's glaucoma was incurred in active service, the United States Court of Appeals for Veterans Claims (Court) held that newly submitted evidence need not relate to more than one unestablished element of the claim to warrant reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The touchstone is whether the new evidence is sufficient to meet the "low threshold" for raising a reasonable possibility of substantiating the claim. For example, if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim to be reopened, then it raises a reasonable possibility of substantiating the claim. Id. at 121. Because the Veteran received treatment for bilateral eye disorders during active service for which service connection has been established-namely left pterygium and right pingueculae-there is at least an indication that his glaucoma is related to his in-service eye problems to warrant a VA examination on this issue, as discussed below. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Thus, the new evidence establishing a diagnosis of glaucoma raises a reasonable possibility of substantiating the claim and constitutes new and material evidence. See Shade, 24 Vet. App. at 117-118, 121. Accordingly, because new and material evidence has been associated with the file within one year of the April 2007 rating decision, it "relate[s] back to the original claim" from which that decision stems. See Buie, 24 Vet. App. at 251-52; 38 C.F.R. § 3.156(b). The April 2007 rating decision is not final, and the issue on appeal is the Veteran's original claim for service connection rather than a petition to reopen a previously denied claim, as characterized by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Glaucoma A VA examination and opinion is warranted to determine whether the Veteran's glaucoma is related to his in-service eye problems, which were diagnosed as pterygium of the left eye and pingueculae of the right eye - both presently service-connected disorders. Glaucoma was first diagnosed in January 2007, which is only six years after the Veteran retired from active service. He was noted to have increasing intraocular pressure (IOP) as early as September 2005, less than five years after his retirement. Thus, there is at least an indication that his glaucoma may be related to his in-service eye problems. Therefore, a VA examination is warranted to address whether his glaucoma was incurred in active service or caused or aggravated by his service-connected eye disorders. See McLendon, 20 Vet. App. at 83. Because this claim also raises the issue of whether the Veteran's service-connected eye disorders caused or aggravated his glaucoma, he should be sent a notice letter in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002),informing him of the requirements for establishing service connection on a secondary basis. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012). Increased Rating: Bilateral Hearing Loss The Veteran has alleged that his bilateral hearing loss causes functional impairment beyond that contemplated in the rating schedule. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See also Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); 38 C.F.R. § 4.10 (2012). Because a June 2009 VA audiological examination did not discuss the functional impairment resulting from the Veteran's service-connected hearing loss, and is now almost four years old, a new VA audiological examination should be provided to assess the current level of severity of the Veteran's hearing loss and associated functional impairment. See id.; see also 38 C.F.R. § 3.327(a) (2012) Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Accordingly, the case is REMANDED for the following actions: 1. Send a VCAA notice letter informing the Veteran of the requirements for establishing entitlement to service connection on a secondary basis. The letter should comply with all current legal guidance regarding proper notice under the VCAA. 2. Request the Veteran to identify any recent medical treatment he has received for his glaucoma and hearing loss. Then, take appropriate steps to secure copies of any treatment records identified by the Veteran which are not currently of record, including all VA treatment records and any private treatment records for which he has furnished the necessary authorization. If these records cannot be obtained, the Veteran must be notified of this fact, and all efforts to obtain them must be documented and associated with the claims file. 3. The Veteran's outstanding VA treatment records dating from April 2009 should be associated with the file. 4. The Veteran must be scheduled for a VA examination by a physician qualified to determine whether he has glaucoma that is related to service or to his service-connected eye disorders. The following considerations will govern the opinion: a. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the claims file and examining the Veteran, express an opinion as to: b. Whether the Veteran's glaucoma is related to his in-service eye problems, including his diagnoses of left pterygium and right pingueculae, or otherwise evidenced by his eye examinations during service. c. Whether the Veteran's glaucoma was caused or aggravated (permanently worsened) by his service-connected left pterygium and right pingueculae. The examiner must use the word "aggravated" or the phrase "permanently worsened" in the opinion when addressing the issue of aggravation. i. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. ii. If the examiner is unable to render an opinion without resorting to speculation, the examiner should so state and provide a complete explanation. iii. The agency of original jurisdiction (AOJ) should ensure that the opinions provided are adequate before returning this case to the Board. 5. The Veteran must be scheduled for a VA audiological examination to determine the extent and severity of his service-connected bilateral hearing loss. All indicated studies should be performed. The following considerations will govern the examination: a. The claims file and a copy of this remand will be made available to the examiner who will acknowledge receipt and review of these materials in any report generated as a result of this remand. b. In addition to performing an audiological examination under VA's examination protocols, the examiner must fully describe the functional effects caused by the Veteran's hearing disability. 6. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). CONTINUED ON NEXT PAGE 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). _________________________________________________ Vito A. Clementi 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).