Citation Nr: 1323844 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-27 483 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an eye condition, to include a pterygium. 2. Entitlement to service connection for an eye condition, to include a pterygium. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to November 1963. This matter initially comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the RO, which denied the Veteran's application to reopen his previously denied claim of service connection for a pterygium. By way of history, the Veteran was initially denied service connection for bilateral pterygium in February 1964. The following rating decisions over the course of the years denied the Veteran's applications to reopen his claim: in March 1982, November 1983 (Board decision), September 2001, February 2003, and June 2009 (from which the Veteran perfected his appeal). In January 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the United States Court of Appeals for Veterans Claims (CAVC) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); 38 C.F.R. § 3.159(c)(3). In light of Brokowski and Clemons, as the evidence reflects that the Veteran has undergone several eye-related surgeries and suffered various eye disabilities, the Board has recharacterized the claim as indicated on the title page. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The reopened claim of service connection for an eye condition, to include a pterygium, is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a February 2003 rating decision, the RO most recently denied the Veteran's application to reopen his claim of service connection for a pterygium; he was notified of this action and apprised of his appellate right, but did not enter a timely appeal. 2. The evidence received since the February 2003 decision relates to a basis for the previous denial and raises a reasonable possibility of the substantiating the Veteran's claim. CONCLUSION OF LAW The evidence received since the February 2003 decision is new and material for the purpose of reopening the claim of service connection for a pterygium. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To the extent that the Board is reopening the claim, further discussion of the VCAA is not necessary at this time. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Legal Criteria and Analysis Generally, a claim which has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). 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, VA shall reopen the claim and review the former disposition of the claim. For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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, 117 (2010). The Board notes that the initial denial of the Veteran's claim of service connection for his eye condition in February 1964 was based on the fact that the RO found that the Veteran was shown to have a pterygium at the time of entry into service (as noted on the entrance examination). The Veteran underwent surgery for the ptergyium during service in 1961, and the RO considered the operation to be remedial in nature for the pre-existing defect. Since the February 1964 rating decision, the Veteran sought to reopen his claim several times and was denied accordingly. The last final prior denial was by way of a February 2003 rating decision when he did not submit new and material evidence within the one year appeal period. In fact, the Veteran submitted a new application to reopen via the telephone in January 2009, as noted in the March 2009 VA's duty to assist letter. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In its February 2003 decision, the RO found that new and material evidence had not submitted to reopen the claim of service connection for a pterygium. In denying the claim to reopen, it appears that the RO considered the medical evidence of record to include evidence submitted since the initial February 1964 denial. The RO stated that the evidence submitted in consideration of the claim essentially duplicates evidence which was previously considered. The cited medical evidence showed that the Veteran has been treated for his vision and received new eyeglasses and that his pterygium was not visually threatening. Also, the RO cited evidence that the Veteran's visual acuity was still too good to consider cataract surgery, and he was prescribed artificial tears for his dry eyes condition. The evidence since the February 2003 decision includes private treatment records, VA treatment records, Social Security Administration records, and the Veteran's hearing testimony at the January 2011 hearing. The Veteran testified that he did not realize he had an eye problem until a "near accident" at Camp Lejeune, which led to his initial surgery in just one eye. He noted having subsequent surgery less than 90 days after the initial one in Bethesda, Maryland, where both eyes were operated on and radiation treatment was used. The Veteran also averred that a VA doctor told him that he had light cataract within a year of separation from service (approximately in 1964). He claimed that his eye condition had worsened which led to surgery in 2006 by Dr. Fischer, when he received implants in both eyes. As the fact that the Veteran had a pre-existing condition which resolved after in-service surgery was the basis for the prior denial, and the Veteran's competent testimony as to whether or not his eye condition resolved in service or was made worse (presumed credible) supports the theory of aggravation, the new evidence relates to the basis for the prior denial, and reopening of the claim is in order. ORDER As new and material evidence has been submitted to reopen the claim of service connection for an eye condition, to include a pterygium, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND The Board finds that further evidentiary development is necessary in connection with now reopened claim. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The May 1960 enlistment examination indicates that the Veteran had bilateral pterygium, which was considered not disabling. An August 1960 service treatment note indicates that the Veteran was told he had questionable cataracts in 1960. A follow-up consultation revealed that there was presence of bilateral pterygium with slight activity. In February 1961, the Veteran underwent a surgical procedure where pterygia were removed from both eyes, but in July 1961, it was noted that there was a rapid reoccurrence of the pterygium and another excision was performed. A report on an examination conducted for a Medical Board in October 1963 revealed that there was no evidence of ocular involvement or recurrence of a pterygium. In statements made in connection with the appeal and during his hearing, the Veteran asserted having no eye problems prior to entering service and not being aware of any eye disease until 1963 when it was diagnosed by service physicians. The Veteran indicated that he was ultimately medically separated from service for his eye condition. He presently contends that his eye condition, which was initially operated on in service, had gotten worse due to his active service. The Board finds that the Veteran had a pre-existing eye condition, pterygium (bilateral), when he entered into service as it was recorded on the entrance examination. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board also notes that a pterygium was a problem during service as he underwent a couple of surgeries to remove the eye growths. The service treatment records showed that no residual disabilities of the pterygium was noted at the time of the separation examination; however, the Veteran has consistently asserted that he had experienced eye problems within a year after separation and his condition had gotten worse to present day. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during 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. In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). Thus, the Board finds that a VA medical examination is necessary to determine any current eye disabilities and its likely etiology. With respect to the pterygium, the service connection theory of aggravation will be applied as it is a pre-existing disability. With respect to any other eye disabilities found, the Board will consider the theory of direct service connection. Additionally, the Board will give the Veteran an opportunity to submit any outstanding relevant private treatment records and ask the RO to locate any additional outstanding VA records that are pertinent to his claims. See Bell v. Derwinski, 2 Vet. App. 611 (1992). (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA during the consideration of a claim). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to request that he provide the names and addresses of any and all health care providers who have treated him for the claimed eye condition since service. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate copies of these records with the claims file. The RO should obtain any and all outstanding VA medical records pertaining to the treatment received by the Veteran for his claimed eye condition. 2. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claim eye condition. The claims folder must be made available to the examiner for review. The purpose of the examination is (1) to ascertain whether the pre-existing eye disability (pterygium) was aggravated by service, and (2) to determine whether any currently identified eye pathology was the result of an event or incident of the Veteran's period of active service. The examiner in providing the requested opinion should specifically include the following: Provide a diagnosis as to the Veteran's current eye disability or disabilities, to include pterygium (or residuals thereof). For each condition diagnosed, provide an opinion as to (1) whether it at least as likely as not that a current acquired eye disability is related to an event or incident of the Veteran's active service ; and (2) whether it is at least as likely as not that any pre-existing acquired eye disability including a pterygium increased in severity as a result of an event in service and whether any such increase was due to the natural progression of the disease process. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner is asked to provide a complete rationale for the opinions rendered. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs