Citation Nr: 1312252 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-40 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for retinal detachment of the right eye. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and S.T. ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from October 1957 to August 1960. This matter comes to the Board of Veterans' Appeals (Board) following an appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In August 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Travel Board hearing at the RO. A transcript of that hearing is of record. Thereafter, in January 2013, the Board remanded the Veteran's claim to the RO for additional development. Following completion of the development requested and receipt of additional evidence from the Veteran, the RO issued a supplemental statement of case (SSOC) in March 2013 continuing its denial of the Veteran's claim. Finally, the Board notes that in the above noted July 2008 rating decision, the RO denied the Veteran's claim for benefits under 38 U.S.C.A. § 1151 due to the fact that new and material evidence had not been received warranting a reopening of the claim. The Veteran appealed the RO's decision. Subsequently, in a September 2010 statement of the case (SOC), the RO commented that it was considering the Veteran's claim on a de novo basis in light of the fact that a prior final decision had found the Veteran's claim not well grounded. The RO referenced the provisions of section 7(b) of the Veterans Claims Assistance Act of 2000 (VCAA). Under section 7(b) of the VCAA, VA, upon request of the claimant or upon the motion of the Secretary, must readjudicate certain finally decided claims "as if the denial or dismissal had not been made." In this regard, RO adjudicative personnel are authorized to initiate such readjudication on behalf of VA. Under paragraph (2) of section 7(b), the "denials" or "dismissals" must meet the following two criteria: (A) they became final "during the period beginning on July 14, 1999, and ending on the date of the enactment" of the VCAA (November 9, 2000) and (B) they were issued because the claim was not well grounded. Additionally, Section 7(b)(3) provides that a claim may not be readjudicated unless the claimant's request or Secretary's motion to initiate it occurs within two years of the enactment of the VCAA. Thus, under section 7(b)(3), no action to initiate the readjudication of a claim should be taken subsequent to November 9, 2002. Furthermore, unless such action has been taken before November 10, 2002, a finally decided claim may not be readjudicated under section 7(b). In the present case, the RO's June 1998 decision would have become final (the Veteran appealed the decision) prior to July 14, 1999. See e.g., 38 C.F.R. § 20.302 (2012). The Board's February 1999 decision was not appealed and it too became final prior to July 14, 1999. See 38 U.S.C. A. § 7266(a)(3) (West 2012). Additionally, readjudication of the Veteran's claim de novo by the RO under section 7(b) was done many years after November 10, 2002. As such, the RO's action in the September 2010 SOC was not correct. The issue before the Board, therefore, remains whether the Veteran has submitted new and material evidence to reopen his claim for compensation under the provisions of 38 U.S.C.A. § 1151 for retinal detachment of the right eye. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the Board's January 2013 remand instructions, it requested that the AMC obtain VA medical records pertaining to the Veteran's June 1998 eye surgery to repair a detached right retina. At the time of the Board's above request, the claims file contain a substantial number of medical records (hospital reports, operative reports, patient consent forms, etc.) associated with the Veteran's August 1992 right eye surgery for cataract removal and intraocular lens implant, as well as his November and December 1997 surgeries for repair of a right eye detached retina. Acting on the Board's remand request, the AMC obtained through the CAPRI records system various notes, to include nursing, pharmacy, and telephone contact notes associated with the June 1998 right eye surgery. Some of these notes had been previously associated with the claims file at the time of the Board's January 2013 remand. Here, it would appear that the AMC has misunderstood the Board's request with regard to obtaining medical records associated with the Veteran's June 1998 right eye surgery. Similar to what was previously obtained by the RO, as noted above, the Board is requesting, in particular, any available hospital summaries, progress notes (to include doctors' orders, nurse notes, pre-operative staff notes), patient consent forms, and operative notes and reports associated with the June 1998 right eye surgery. As such, the Veteran's claim is regrettably remanded for the AMC to obtain any available medical records, as described above, associated with the Veteran's June 1998 right eye procedure at the Houston VAMC. Any response from the Houston VAMC should include a comment concerning a search of any retired records or that no retired records exist, if applicable. Also in its remand instructions, the AMC was requested to provide the Veteran with proper procedural notice under Kent v. Nicholson, 20 Vet. App. 1 (2006). Under Kent, VA must notify the Veteran of the elements of his claim and of the definition of "new and material evidence." Also, VA is required to give the Veteran notice of precisely what evidence is necessary to reopen his claim, depending upon the basis of the previous denial. Furthermore, Kent requires that the notice inform the Veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. A review of the claims file reflects a January 2013 notice letter from the AMC to the Veteran. The notice letter correctly provides the Veteran with a definition of new and material evidence, and also provides the Veteran with the elements of his claim for benefits under 38 U.S.C.A. § 1151. The letter, however, does not provide the Veteran with the correct explanation for why his claim was previously denied. In this regard, the January 2013 notice reflects the following, Your claim was previously denied because service medical records were available and were reviewed. There was no indication of complaint, treatment, findings or diagnosis of an eye condition found. Evidence of record did not substantiate incurrence or aggravation of an eye condition while on active duty or immediately thereafter. Therefore, the evidence you submit must be new and relate to this fact. As noted above, the Veteran's claim is not related to any injury or disability incurred or aggravated during active military service. The claim for compensation benefits under 38 U.S.C.A. § 1151 is related to surgical treatment performed by VA on the Veteran's right eye many years after service. Notwithstanding the AMC's mistake, the Veteran would appear to be otherwise on notice of what he needs to substantiate his claim. He has submitted two statements from private medical doctors concerning his right eye disability. Nonetheless, in light of the need to remand the Veteran's claim for the noted VA medical records, as outlined above, the RO should notify the Veteran of the reason his claim for benefits under 38 U.S.C.A. § 1151 was previously denied (see June 1998 RO decision and February 1999 Board decision) and what evidence he needs to submit to substantiate the claim. Finally, a review of the September 2010 SOC, as well as the March 2013 SSOC, does not reflect citation to the provisions of 38 C.F.R. § 3.156(b) (2012). Any subsequent SSOC issued the Veteran following readjudication of his claim should include the provisions of 38 C.F.R. § 3.156(b). 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) (2012). Expedited handling is requested.) 1. Provide notice to the Veteran of the reason his claim for benefits under 38 U.S.C.A. § 1151 was previously denied (see June 1998 RO decision and February 1999 Board decision). Also, notify the Veteran what evidence he needs to submit to substantiate his claim for benefits under 38 U.S.C.A. § 1151 for retinal detachment of the right eye. 2. Obtain any VA records associated with the Veteran's June 30, 1998 right eye surgery (described as "pars plana posterior vitrectomy, right eye-strip retinal membrane and endolaser with silicone oil and perflurocarbon") at the Houston VAMC. Such records should include, if available, hospital summaries, progress notes (to include doctors' orders, nurse notes, pre-operative staff notes), signed patient consent forms, and operative notes and reports. Any search must include a search of Houston VAMC retired/archived records, if appropriate. If records from the Houston VAMC are unavailable, or the search for them otherwise yields negative results, this fact must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1) (2012). 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue on appeal. If the benefit sought is denied, the Veteran and his representative must be provided an SSOC (to include citation to the provisions of 38 C.F.R. § 3.156(b) (2012)). Thereafter, the Veteran and his representative should be given an opportunity to respond before the case is returned to the Board for appellate 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). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JAMES A. MARKEY 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).