Citation Nr: 1317443	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  10-47 552	)	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 submitted to reopen a claim of entitlement to service connection for bilateral eye disability, to include astigmatism in both eyes, loss of sight in the left eye, tired eyes, and watery vision, and if so, whether the reopened claim should be granted. 

2.  Entitlement to an initial compensable disability rating for headaches. 

3.  Entitlement to an effective date earlier than November 17, 2008, for the grant of entitlement to service connection for residuals of traumatic brain injury.


ATTORNEY FOR THE BOARD

N. J. Nardone, Associate Counsel




INTRODUCTION

The Veteran served on active duty from June 1967 to August 1979.

This case is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

Following the November 2010 Statement of the Case (SOC), the Veteran submitted additional medical evidence, along with a waiver of consideration by the agency of original jurisdiction (AOJ) in June 2010.  See 38 C.F.R. § 20.1304.  In June 2011, however, the Veteran submitted additional evidence without a waiver of AOJ consideration.  The newly received evidence is not pertinent to the claims currently before the Board, as it merely consists of one audiology treatment record.  The claim of entitlement to service connection for an eye disability is reopened as shown below, and along with the claim for an initial compensable disability rating for headaches, is being remanded for further development.  Thus, the originating agency will be afforded an opportunity to review this newly received evidence.

The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. 

The issues of entitlement to service connection for bilateral eye disability and entitlement to an initial compensable disability rating for headaches are addressed in the REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

1.  The RO denied service connection for bilateral eye disability in a January 1980 rating decision; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 

2.  Evidence received after the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record, addresses unestablished facts necessary to substantiate the claim, and raises the reasonable possibility of substantiating the claim.

3.  Service connection for residuals of traumatic brain injury was denied in unappealed rating decisions in January 1980 and February 1990. 

4.  A claim to reopen the claim for service connection for traumatic brain injury was not received prior to November 17, 2008. 

5.  The Veteran's claim for service connection for traumatic brain injury was reopened on the basis of new and material evidence, other than service department records, that was received more than one year after the February 1990 rating decision.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claim for service connection for bilateral eye disability, to include astigmatism in both eyes, loss of sight in left eye, tired eyes, and watery vision.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 

2.  An effective date earlier than November 17, 2008, is not warranted for the award of service connection for residuals of traumatic brain injury.  38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2012). 







REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

As explained below, the Board has determined that new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral eye disability.  Therefore, no further discussion of VA's duties to notify and assist is needed with regard to this issue. 

With regard to the Veteran's claim of entitlement to an effective date earlier than November 17, 2008, for the grant of entitlement to service connection for residuals of traumatic brain injury, the record reflects that the Veteran was provided all required notice by letters mailed in December 2008 and May 2009, prior to the initial adjudication of the claim.   

As explained below, a determination of the proper effective date for the award of service connection is based on when the claim for the benefit was received and when entitlement arose.  The record reflects that all evidence pertinent to when the Veteran's entitlement arose is already of record, as is the documentation constituting the Veteran's claim to reopen the previously denied claim for service connection which led to the grant of service connection.  The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim; the Board is also unaware of any such evidence.  Accordingly, the Board will address the merits of the claim. 

II.  Claim to Reopen

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence means existing evidence not previously received by agency decisionmakers.  Material evidence means existing evidence that, 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.  38 C.F.R. § 3.156(a).

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The RO originally denied the Veteran's claim for service connection for a vision disability in a January 1980 rating decision because the evidence showed astigmatism, which is a constitutional or developmental abnormality, not a disability for which service connection may be established.  The Veteran did not appeal this decision or submit any pertinent evidence within the appeal period.

The evidence of record at the time of the previous denial included the Veteran's service treatment records, which showed that the Veteran was noted to have defective vision during the February 1967 entrance examination.  He sought treatment for complaints of watery eyes and blurred vision in May 1968, was treated for bilateral eye irritation from excessive chlorine in the eyes in March 1978, and was found to have scleritis of the right eye in May 1979.  Defective distant vision was noted during the July 1979 separation examination.  The service treatment records also show that the Veteran sustained and was treated for shrapnel wounds of other parts of his body during service.  Post-service, the Veteran was provided a VA examination in November 1979, at which time he reported having sustained a minor injury of the left eye in 1968.  Upon examination, his vision was found to be correctable to 20/20, bilaterally, and the diagnosis was bilateral astigmatism. 

No pertinent evidence was received within the appeal period following the January 1980 rating decision.  The evidence received after the appeal period includes VA treatment records, private treatment reports, VA examination reports, and written statements from the Veteran.  The Veteran contends that he has a current eye disability due to head trauma sustained on two occasions during service, or secondary to his service-connected traumatic brain injury.  The medical evidence shows current diagnoses of total blindness of the left eye due to central retinal artery occlusion and glaucoma in each eye.  This evidence is not cumulative or redundant of the evidence previously of record.  Moreover, it relates to an unestablished fact necessary to substantiate the claim.  Accordingly, it is new and material and reopening of the claim is warranted.

III.  Earlier Effective Date for Service Connection

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore."  38 U.S.C.A. § 5110(a).  The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance, "will be the date of receipt of the claim or the date entitlement arose, whichever is the later."  38 C.F.R. § 3.400. 

With a claim for service connection, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. §3.400(b)(2)(i). 

The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii).  However, new and material evidence received prior to the expiration of the appeal period (one year after notice of the decision is sent) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156(b) (2012). 

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a). 

The Veteran contends he is entitled to an effective date prior to November 17, 2008, for the grant of entitlement to service connection for residuals of traumatic brain injury.

The Veteran was discharged from service in August 1979.  He first submitted a claim for service connection for head wounds that month.  In a January 1980 rating decision, the RO denied service connection for chronic residuals of head injury.  The Veteran did not appeal this decision and it became final.  See 38 U.S.C. § 4005 (1976) and 38 C.F.R. § 19.129 (1979). 

In January 1990, the Veteran reported during a VA examination that he had received a head concussion as a result of a bomb explosion during service.  In a February 1990 rating decision, the RO denied service connection for chronic residuals of head injury.  The Veteran was notified of this decision in March 1990, but did not appeal this decision and it became final.  See 38 U.S.C. § 4005 (1988) and 38 C.F.R. § 19.129 (1989). 

On November 17, 2008, the RO received the Veteran's claim for service connection for a head injury.  The Veteran underwent a VA examination to evaluate his traumatic brain injury in November 2009.  In pertinent part, the examiner noted a diagnosis of traumatic brain injury and opined that this diagnosis was related to a blast injury during the Veteran's active duty service.  Based on this evidence, which was received more than one year after the February 1990 unappealed rating decision, the RO granted service connection for residuals of traumatic brain injury, effective from November 17, 2008. 

A review of the claims files shows that there is no communication, formal or informal, that could be interpreted as a claim for service connection for traumatic brain injury that was received subsequent to the RO's February 1990 rating decision, and prior to November 17, 2008.

Given the foregoing, there is no basis for the assignment of an effective date for the grant of service connection for residuals of traumatic brain injury prior to November 17, 2008.  See 38 C.F.R. § 3.400(q)(1)(ii), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). 

(Parenthetically, even if the Veteran's November 2008 claim was considered an original claim for compensation rather than a claim to reopen, the effective date could be no earlier than November 17, 2008.  Under applicable law and regulation, the effective date of an award based on an original claim for compensation benefits received more than one year after the claimant's discharge from service shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.) 

The Board therefore finds that the preponderance of the evidence is against the claim for an effective date prior to November 17, 2008, for service connection for residuals of traumatic brain injury. 


ORDER

As new and material evidence has been received, reopening of the claim for entitlement to service connection for bilateral eye disability, to include astigmatism in both eyes, loss of sight in the left eye, tired eyes, and watery vision, is granted.

An effective date earlier than November 17, 2008, for the grant of entitlement to service connection for residuals of traumatic brain injury is denied.


REMAND

The Board is of the opinion that additional development is required before the Veteran's claims for entitlement to service connection for bilateral eye disability and entitlement to an initial compensable disability rating for headaches are decided. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

In addition, service connection may be granted for disability which is proximately due to or the result of service-connected disability.  38 C.F.R. § 3.310(a) (2012).  Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  However, the veteran may only be compensated for the degree of disability over and above the degree existing prior to the aggravation.  Id.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

In the present case, the evidence reveals that the Veteran is being treated for total blindness of the left eye due to central retinal artery occlusion and glaucoma in each eye.  

The Veteran has alleged that his claimed eye disability is secondary to his traumatic brain injury.  In this regard, the April 2010 rating decision awarded service connection for traumatic brain injury.  

The Veteran was provided a VA examination to evaluate his claimed eye disability in November 2009 and was diagnosed with total blindness in the left eye secondary to central retinal artery occlusion and glaucoma in each eye.  The examiner opined that the vision loss in the left eye is not caused by or a result of exposure to blasts in 1968.  The examiner explained that the loss of vision is the result of the central retinal artery occlusion suffered by the Veteran in 2008.  His central retinal artery occlusion was more than likely caused by a plaque embolism that lodged in the central retinal artery of the left eye.  Plaque is formed by high cholesterol and high blood pressure, for which the Veteran is being treated.  

While the November 2009 VA examiner addressed the possible relationship between the Veteran's vision loss in the left eye and exposure to blasts during service, the Board notes that the examiner did not specifically discuss whether the Veteran's current eye disability was caused or aggravated by his service-connected traumatic brain injury.  A VA examination to address this medical question is necessary.  See 38 U.S.C.A. § 5103A.  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

Prior to the examination, all outstanding, pertinent medical records should be obtained and associated with the claims files or Virtual VA.  In this regard, in a June 2009 statement, the Veteran reported that Durham VA Medical Center (VAMC) has treatment records for his eye disability and his service-connected headaches.  However, the most recent VA treatment records contained in the claims files or Virtual VA are dated in July 2006.  Therefore, further development to obtain the records is required.

Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 

1.  The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claims, to include any pertinent VA records for the period since July 2006.

2.  Then, the RO or the AMC should arrange for the Veteran to be scheduled for a VA examination by an examiner with the appropriate expertise to determine whether it is at least as likely as not that any eye disability, to include astigmatism in both eyes, loss of sight in the left eye, tired eyes, and watery vision, present during the period of the claim was caused or aggravated by his service-connected traumatic brain injury.  The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner, and any indicated studies should be performed.  A notation to the effect that this record review took place should be included in the examination report. 

Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles, the examiner should provide an opinion with respect to each eye disorder present during the period of this claim as to whether there is a 50 percent or better probability that the disorder was caused or permanently worsened by the Veteran's traumatic brain injury. 

The examiner must explain the rationale for all opinions expressed.  If the examiner is unable to provide any required opinion, he or she should explain why.  

3.  The RO or the AMC should also undertake any other development it determines to be warranted. 

4.  Then, the RO or the AMC should again review the record and re-adjudicate the claims.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999). 

This case 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 


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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).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs