Citation Nr: 1319054	
Decision Date: 06/12/13    Archive Date: 06/21/13

DOCKET NO.  09-30 360	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disability, to include traumatic glaucoma with bone white cataract, left eye blindness, and partial left retinal detachment.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Dale, Counsel



INTRODUCTION

The Veteran served on active duty from November 1979 to October 1980.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that found new and material evidence had not been received to reopen a claim for service connection for traumatic glaucoma with bone white cataract.  The Veteran expressed disagreement with this determination and the present appeal ensued.  

Characterization of the issue on appeal

In June 1997, the Veteran filed a claim to establish service connection for "glaucoma suspect eye problems."  (See the Veteran's June 1997 claim.)  The RO accepted this statement as two separate claims and, by a rating decision dated in September 1997, denied the Veteran's claims to establish service connection for glaucoma and "eye problems."  Later that month, the Veteran was notified of this determination and of his right to appeal, and he submitted additional, pertinent evidence, private treatment records, in support of these claims.  In light of this additional evidence, the RO readjudicated the Veteran's claim to establish service connection for glaucoma in an October 1997 rating decision.  See 38 C.F.R. § 3.156(b).  He was notified of this determination and of his right to appeal by a letter dated later that month, but a timely appeal was not received.  As such, the October 1997 rating decision became final.  38 U.S.C.A. § 7105 (West 2012).

In November 2007, the Veteran again asserted a claim of entitlement to service connection for an "eye problem."  (See a November 2007 statement from the Veteran.)  A December 2007 letter from the RO noted that the Veteran's previous claims to establish service connection for glaucoma and "eye problems" had been denied in the "final" September 1997 rating decision.  The Board observes that the RO's December 2007 letter did not mention the October 1997 rating decision which constituted a final denial of the Veteran's glaucoma claim.  Nevertheless, in the March 2008 rating decision, and July 2009 statement of the case, the RO characterized the Veteran's claim as a claim to reopen a claim of entitlement to service connection for "glaucoma with bone white cataract" and denied reopening, determining that new and material evidence sufficient to reopen the claim has not been submitted.  Moreover, as the Board finds in the decision below that new and material evidence has been received to reopen the claim for service connection for an eye disability, the Veteran has not been prejudiced by the December 2007 RO letter reference only to the prior final September 2007 rating decision.  (It is noted that the September 2007 denial was subsumed by the unappealed October 2007 readjudication of the claim, which is final.  Hence, the September 2007 denial also may not be revisited, and is final.)

It is significant to note that the prior final October 1997 rating decision, promulgated in light of the Veteran's submission of pertinent new and material evidence in September 1997, denied the service connection for glaucoma with bone white cataract, but did not specifically address the "eye problems" claim.  In this respect, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), that where a veteran files more than one claim at a time and the rating decision acts on one claim but not another, the second claim is deemed denied, and the appeal period begins to run.  In Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007), however, the Court distinguished Deshotel and held that a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of the subsequent "claim" for the same disability.  The Court in Ingram also found it is "reasonable" to assume that, in a RO decision which assigns a particular disability rating less than 100 percent (as is the current case), the appellant is understood to have received general notice of the denial of his TDIU claim. 

Given (1) that glaucoma with bone white cataract was the only diagnosed "eye problem" of record at the time of the October 1997 rating decision, and (2) the related nature of the Veteran's claims to establish service connection for glaucoma and "eye problems", the Board finds that a reasonable person would have been placed on notice that the decision to deny service connection for glaucoma with bone white cataract included an implicit denial of his claim for "eye problems."  Adams v. Shinseki, 568 F.3d 956, 961-964 (Fed. Cir. 2009) (formulating the "implicit denial rule" and the factors to be considered in considering its application).  

Therefore, the Board concludes that the Veteran's claims to establish service connection for glaucoma with bone white cataract and "eye problems" were denied in the October 1997 rating decision.  Although the Veteran was notified of this rating decision and his appellate rights later that month, he did not express disagreement with this determination or submit new evidence in support of the claim within a year of this notice.  As such, the October 1997 rating decision is the prior final denial of the Veteran's claim.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012); see also Bond v. Shinseki, 659 F. 3d 1362 (Fed. Cir. 2011).  

Concerning the Veteran's claim presently before the Board, the Veteran's November 2007 petition to reopen his previously-denied claim of entitlement to service connection for an "eye condition," as will be further discussed below, the evidence of record includes diagnoses of traumatic glaucoma with bone white cataract, left eye blindness and partial left retinal detachment.  Accordingly, the Board has recharacterized and expanded the Veteran's claim as stated on the title page to afford the Veteran every opportunity to establish her claim under VA laws and regulations.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Preliminary note

As will be further discussed below, in his August 2009 substantive appeal, the Veteran requested a hearing before a Board member in connection with his petition to reopen his previously-denied claim to establish service connection for an eye disability.  Although a hearing was scheduled as per the Veteran's request, he failed to report for such, and the Veteran's claim was subsequently transferred to the Board.  In statements dated in October 2012 and May 2013, the Veteran's representative requested that the hearing be rescheduled, asserting that he did not receive notice of the time and place of the previously-scheduled hearing due to homelessness.  

Although the Veteran has yet to be afforded a hearing as per his request, in the present action, the Board is granting his petition to reopen his previously-denied claim to establish service connection for an eye disability.  To that extent, he is not prejudiced by the Board's actions in adjudicating that portion of his claim.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board makes a determination, it must consider whether the Veteran has been prejudiced thereby).  Further, as will be discussed in the REMAND section, the Veteran will be afforded the opportunity to participate in a hearing concerning the merits of his claim after the completion of additional development as directed by the Board, if necessary.  38 U.S.C.A. § 7107(f).  

The reopened claim of entitlement to service connection for an eye disability, to include traumatic glaucoma with bone white cataract, left eye blindness, and partial left retinal detachment, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  An unappealed October 1997 rating decision denied service connection for glaucoma.  

2.  Evidence added to the claims file since the October 1997 rating decision is new, and when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the claim of service connection for an eye disability, to include traumatic glaucoma with bone white cataract, left eye blindness, and partial left retinal detachment.



CONCLUSIONS OF LAW

1.  The RO's October 1997 rating decision, which denied service connection for glaucoma, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012).

2.  Evidence received since the October 1997 rating decision, considered in conjunction with the record as a whole, is new and material, and the criteria to reopen the claim for service connection for an eye disability, to include traumatic glaucoma with bone white cataract, left eye blindness, and partial left retinal detachment, have been met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the Veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist her in obtaining such evidence.  38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012).  Given the favorable disposition of the actions here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of the issue of whether new and material evidence has been submitted to reopen the claim.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Applicable Law

New and Material Evidence

Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed.  The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim."  Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  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 VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits.  See Evans v. Brown, 9 Vet. App. 273 (1996).  The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim.  Id.

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).


Service connection and preexisting disabilities

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, 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, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999).

Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service.  38 U.S.C.A. § 1111.  

For purposes of aggravation of a preexisting injury, such aggravation will be said to have occurred where there is an increase of disability during active military, naval or air service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Paulson v. Brown, 7 Vet. App. 466, 468 (1995).  Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  Aggravation may not be conceded, however, where the disability underwent no increase in severity during service.  38 C.F.R. § 3.306(b).  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991).  In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened.  Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991), Browder v. Brown, 5 Vet. App. 268, 271 (1993).  See also Daniels v. Gober, 10 Vet. App. 474, 479 (1997).

If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder.  In that case, section 1153 applies and the burden falls on the Veteran to establish aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease."  38 U.S.C.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417.  The pertinent VA regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b).

If a preexisting disorder is not noted upon entry into service, pursuant to 38 U.S.C.A. § 1111, and 38 C.F.R. § 3.304, VA must rebut the presumption of soundness on entry into service by showing clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches.  Cotant v. Principi, 17 Vet. App. 116 (2003).  The Federal Circuit has held that "the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for wartime service under section 1111."  Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

Analysis

As discussed in the Introduction, the Veteran's claims to establish service connection for glaucoma and "eye problems" were denied by the RO in the final October 1997 rating decision.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012); see also Bond v. Shinseki, No. 2010-7096 (Fed. Cir. Oct. 7, 2011).  

During the pendency of the present appeal, the RO did not reopen the claim for service connection for traumatic glaucoma with bone white cataract in either the March 2008 rating decision or July 2009 statement of the case.  Regardless of the RO's actions, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001).  

The basis of the prior final denial by the RO in October 2007 was that there was not clear and unmistakable evidence that the Veteran's preexisting eye disability was permanently aggravated by his active duty.  Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the October 1997 rating decision that addresses this basis.  

The evidence submitted and obtained since the October 1997 rating decision includes private treatment records from Grady Memorial Hospital dated from January 2007 to September 2007, reflecting left eye blindness and aching of the right eye.  This evidence is "new," as it had not been previously considered by VA, and "material" as shows a sharp progression of the Veteran's eye disability, and thus, it raises the reasonable possibility of substantiating the Veteran's claim.  The Board thus finds that new and material evidence has been submitted to reopen the issues of entitlement to service connection for an eye disability since the prior final denial of this claim in October 1997.  Shade, supra.  On that basis, the claim is reopened.  


ORDER

New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for an eye disability, to include traumatic glaucoma with bone white cataract, left eye blindness, and partial left retinal detachment, and to that extent only, the appeal is granted.


REMAND

Preliminarily, the Board finds that adjudication of the reopened claim of entitlement to service connection for eye disability on a de novo basis is inappropriate at this juncture.  In Hickson v. Shinseki, 23 Vet. App. 394 (2010), the Court stated that when the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits because the RO should, in the first instance, consider that new evidence, as well as laws and regulations not previously considered, and decide the matter so as to preserve for that claimant the one review on appeal.  In the present case, the RO did not reopen the claim and/or consider it on the merits de novo.  Accordingly, this issue must be remanded to the RO for consideration of such in the first instance on the merits and in light of the new evidence as well as laws and regulations not previously considered as per the Court's holding in Hickson.

Finally, as noted in the Introduction, the Veteran failed to report for a hearing at the RO before a Veterans Law Judge of the Board in September 2012.  The Board finds that good cause has been shown for another hearing date in light of the Veteran's lack of notice of the time and place of this hearing due to homelessness as well as his timely request for rescheduling.  38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 19.75, 19.76, 20.703, 20.704 (2011).  Consequently, if the Veteran's reopened claim is denied after adjudication de novo by the RO, he should be scheduled for a hearing before a Veterans Law Judge of the Board at the RO, as per his request.  

Accordingly, the case is REMANDED for the following action:

1.  Following completion of any indicated development, the RO should adjudicate the Veteran's reopened claim to establish service connection for an eye disability de novo, with application of all appropriate laws and regulations, and consideration of all information and evidence of record.  

IF the reopened claim to establish service connection for an eye disability is denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 

2.  Following completion of the above requested action, if the benefit sought on appeal has not been granted, schedule the Veteran for a Travel Board hearing at the RO before a Veterans Law Judge of the Board.  Provide the Veteran, at his most recent address of record, with notice of the date, time and location of his hearing and place a copy of the hearing notice letter in his claims file.  If the Veteran fails to appear for such a scheduled hearing, or otherwise indicates he no longer desires such a hearing, this should be documented in the record.  

The Veteran has the right to submit additional evidence and argument on the matter 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).


______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs