Citation Nr: 1317348 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 06-38 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a concussion or other head injury. 2. Whether new and material evidence has been received to reopen a claim for service connection for an ear disability, to include otitis media and eustachian tube dysfunction. 3. Whether new and material evidence has been received to reopen a claim for service connection for an eye disability. 4. Entitlement to service connection for an eye disability. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from February 1976 to February 1980 and from October 1980 to April 1983. This matter comes to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claims for service connection for a head injury, ear disability, and eye disability. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In January 2010 the Board reopened and remanded the claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). Subsequently a May 2011 rating decision granted service connection for anxiety disorder; acquired psychiatric disability. The Board finds that this is a full grant of the benefits sought and the issue for service connection for an acquired psychiatric disorder to include PTSD, is not longer on appeal. In January 2010 and August 2012 the Board remanded the claims for additional development. Unfortunately, further remand to comply with the prior remand instructions is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's virtual VA file has been reviewed. The issues of whether new and material evidence has been received to reopen a claim for service connection for residuals of a concussion or other head injury; whether new and material evidence has been received to reopen a claim for service connection for an ear disability, to include otitis media and eustachian tube dysfunction; service connection for an eye disability; and service connection for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a September 1986 rating decision, the RO denied service connection for an eye disability. The Veteran did not appeal the decision. No new evidence was received within one year of the decision and no additional relevant service treatment records were received. The decision is now final. 2. Evidence submitted since the RO's September 1986 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an eye disability. 3. An eye disability, chorioretinal scarring of the right eye, is related to service. CONCLUSIONS OF LAW 1. No evidence was received within one year of the September 1986 decision and no additional relevant service records have been received. Therefore, the prior decision is final. 38 C.F.R. § 3.156, 3.160(d) (2012). 2. An eye disability, chorioretinal scarring of the right eye, incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 . The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Evidence received since the September 1986 rating decision includes a March 2010 VA examiner's opinion that the etiology of the Veteran's eye disability was a probable traumatic event. This evidence is new and material as it was not of record at the time of the last rating decision and it relates to a material element of the claim, specifically competent evidence that the Veteran's current eye disability may be related to a traumatic event in service. The information received since the last final rating decision constitutes new and material evidence within the meaning of 38 C.F.R. § 3.156(a); and reopening the claim is warranted. 38 U.S.C.A. § 5108. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran's eyes were normal upon entry to service. During service the Veteran was noted to have a history of multiple pigmented scars of right retina in prior service noted in October 1980; traumatic choroidal scarring noted in October 1980; pigment scar in the macula of the right eye due to ocular trauma noted in January 1981; and conjunctivitis in October 1981. Service treatment records show multiple incidents of injuries to the head and face. A September 1986 administrative decision determined that a December 1978 head injury incident was not in the line of duty therefore the incident will not be considered for determining service connection. There are other head injuries of record. In February 1982 the Veteran reported being in a fight where someone stepped on his face, and he was hit with a fist in the face. He had pain in his head and a "goose egg" on the left occipital and was diagnosed with a fractured nose and soft tissue injury. In August 1982 the Veteran was seen after he was hit in the head and was noted to have a small contusion on right frontal scalp. In October 1982 the Veteran reported losing consciousness from 0530 to around 1200 after he was lacing his boot and hit his head on a desk. In November 1982 the Veteran was seen after being hit in the mouth. In March 2010 a VA examination of the eyes was conducted. The Veteran was diagnosed with chorioretinal scarring right eye, and retinal scars right eye. The Veteran reported being hit in the head eight to ten times in service but could not remember a specific trauma to the eyes, although the examiner noted that the Veteran did have memory problems. The examiner opined that the Veteran's traumatic chorioretinal scarring of the right eye was caused by or a result of ocular trauma. She reported that there was no specific service connected disability to link the chorioretinal scarring to but the Veteran has current vision impairment due to significant chorioretinal scarring in the right eye. She also found that clinical examination of the scarring was consistent with a probable traumatic event as its etiology. The examiner noted that collecting the Veteran's history on any single traumatic event that incurred during service was difficult as the Veteran has memory problems but he did report having head trauma in service. In sum prior to service the Veteran had no noted eye difficulties. In service he was treated for multiple eye complaints, and multiple head and face injuries. The Veteran reported no post service eye or head trauma. The sole medical opinion of record finds that the Veteran's current traumatic chorioretinal scarring of the right eye is the result of ocular trauma. The only identified incidents of trauma to the eye or face area occurred during service. While the examiner did not review the claims file, she did note the Veteran's in service eye complaints and treatments, and his self report of multiple head traumas in service which is supported by the service treatment records, even with exclusion of the December 1978 incident. The Board finds that the weight of the evidence supports a relationship between chorioretinal scarring of the right eye and in-service incidents, and a request for another medical opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The evidence is in relative equipoise, any doubt is resolved in favor of the Veteran and service connection for chorioretinal scarring of the right eye is warranted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received, the petition to reopen a claim for service connection for an eye disability is granted. Service connection for chorioretinal scarring of the right eye is granted. REMAND Remand for compliance with the prior Board remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2012 Board remand specifically instructed that all VA medical records from the Phoenix VAMC dated after September 2010 were associated with the claims file. The claims file contains a print out of the screen of the Virtual VA claims file (the electronic records) which identifies CAPRI records from September 22, 2010 through April 16, 2012. The January 2013 Supplemental Statement of the Case (SSOC) lists the same Phoenix VAMC treatment records as new evidence and the discussion section references treatment on April 16, 2012 for an ear complaint however, the actual VAMC treatment records cannot be located in either the paper claims file or the electronic claims file, Virtual VA. Therefore a remand to associate these records with the claims file, electronically or paper, is required. Remand for a VA examination for residuals of a head injury and/or loss of consciousness is also required. The September 1986 rating decision determined that the Veteran's December 1978 possible loss of consciousness was not in the line of duty, based on a June 1986 administrative decision, and therefore not the basis for service connection. The rating decision also found that the other in service head injuries did not result in a chronic disability. The September 1978 rating decision is now final. Subsequent adjudications have focused on the December 1978 in service incident of head injury, which was found to be not in the line of duty, and have denied reopening the claim for service connection on that basis. However proper consideration and development of the Veteran's claim based upon multiple head and facial injuries that were in the line of duty has not been completed. Service treatment records demonstrate for other incidents. In February 1982 the Veteran reported being in a fight where someone stepped on his face, and he was hit with a fist in the face, resulting in head pain and a goose egg on left occipital for which he was diagnosed with a fractured nose and soft tissue injury. In August 1982 the Veteran was hit in the head and was noted to have a small contusion on right frontal scalp. In October 1982 the Veteran reported losing consciousness from 0530 to around 1200 after he was lacing his boot and hit his head on a desk. In November 1982 the Veteran was seen after being hit in the mouth. A VA examination is needed to determine whether the Veteran has any current residuals due to any in service head injuries in the line of duty, including the ones identified above. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all VA medical records dated after September 22, 2010, from the Phoenix, Arizona VAMX, and any other identified VA clinic or facility. 2. Following completion of the above, schedule a VA examination for residuals of a head injury and/or loss of consciousness in service. The examiner must note that the claims file has been reviewed. If the examiner does not have access to Virtual VA, please print out and include a copy of any relevant records with the claims file. The examiner is asked to evaluate the Veteran and provide an opinion as to whether the Veteran has any current diagnosed disability which is at least as likely as not related to any in service head injury, to include, but not limited to, the incidents in February 1982, August 1982, October 1982 and November 1982 identified above, or any other in service injury or disease. The examiner shall NOT include the December 1978 head injury in forming an opinion. 3. Following completion of the above, readjudicate the claims. If any benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and provide adequate time for response. The case should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs