Citation Nr: 1333675 Decision Date: 10/24/13 Archive Date: 10/24/13 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 post-surgical right eye residuals to include loss of sight. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and Friend ATTORNEY FOR THE BOARD Jennifer R. White, 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. In January 2013 and April 2013, the Board remanded the Veteran's claim to the RO for additional development. The required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 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 (2013). 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 2013). 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. Additionally, the Board is of the opinion that the Veteran's current claim is, in fact, based on the same factual basis as his previous claim, in that he indicated during his August 2012 hearing testimony that a mistake was made during his 1992 right eye surgery and his sight in that eye has deteriorated due to that mistake. Accordingly, must be considered on a 'new and material' basis. Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). Thus, 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. The Board notes that the Veteran, in a letter dated April 2013, indicates that his claim is for his loss of sight in his right eye, subsequent to his surgery for a retinal detachment. The Board agrees that this would be a more appropriate characterization of the Veteran's claim currently on appeal. Thus, the issue has been changed accordingly. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A February 1999 Board decision denied entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a right eye surgery. 2. All of the evidence submitted since the Board decision is either cumulative or redundant of evidence already in the claims folder or does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The February 1999 Board decision, which denied the claim for an additional right eye disability under the provisions of 38 U.S.C.A. § 1151 is final; new and material evidence has not been submitted, and the claim is not reopened. 38 U.S.C.A. §§ 7104 , 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the Veteran was sent a letters in January 2013 and May 2013 that fully addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the May 2013 letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in January 2013 and May 2013 communications, and the claim was thereafter readjudicated in July 2013. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination need not be provided for the Veteran's applications to reopen previously denied claims. In the absence of new and material evidence of record, the duty to assist by affording the Veteran a VA examination is not triggered. See 38 U.S.C.A. § 5103A(d), (g); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet. App. 542, 546 (1996) (holding that unless the veteran has submitted new and material evidence warranting the reopening of his claim, the duty to assist does not attach). As discussed below, the Board finds that new and material evidence has not been submitted, and reopening the Veteran's previously denied claim is not warranted. Therefore, an examination to consider the Veteran's claim is not required. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports treatment and examination, hearing testimony, lay statements and the Veteran's contentions. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at an August 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran was afforded the opportunity to testify before the undersigned Veterans Law Judge in August 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge, in a pre-hearing conference discussed the basis of the prior determinations and noted the elements that were lacking to substantiate the service connection claims on appeal. In addition, the Veteran demonstrated actual knowledge of this information. The Veteran specifically addressed medical evidence in support of his claims, indicating an understanding of requirements to establish his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Additionally, the presiding Veterans Law Judge noted the issues on appeal and provided a basic explanation of them and requested the Veteran submit a medical opinion with the two required elements of an 1151 claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.160(d) , 20.302, 20.1103 (2013). The claim for entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to 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 a claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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) (2013). Only evidence presented since the last final denial on any basis will be considered in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2013). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1). Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. The Board decision in February 1999 denied the Veteran's claim because there was no evidence of additional ophthalmologic pathology due to surgical treatment or that symptoms clinically extant subsequent to surgery represented an additional impairment or aggravation of the right eye condition attributable to surgery. Neither the Veteran nor the Board requested reconsideration of the decision, and the Veteran did not appeal to the United States Court of Appeals for Veterans Claims. Thus, the Board decision is final. See 38 U.S.C.A. §§ 7103(a), 7104, 7252 (West 2002); 38 C.F.R. § 20.1100(a) (2013). Compensation under 38 U.S.C.A. § 1151 for an additional right eye disability was denied in February 1999 based on a finding that the evidence did not show that VA medical services were the proximate cause of an additional right eye disability related to the surgery. For evidence to be new and material in this matter, it would have to tend to show that the Veteran actually has such additional disability and that VA treatment was the proximate cause of it. While the post-service treatment records, hearing testimony, newspaper article indicating another Veteran lost sight in his eye due to an error at a VA Medical Center (submitted in February 2013) and the Veteran's additional contentions added to the record since the February 1999 Board decision are new evidence in the sense that they were not considered in that decision, they are not material evidence. They do not show or suggest that the Veteran now has, or during the pendency of this claim has had, an additional right eye disability which is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. The Board notes that the Veteran's contentions to this extent were of record at the time of the February 1999 Board decision. Additionally, the Veteran's own assertions to the effect that he has an additional right eye disability due to fault during VA treatment are not competent evidence in this matter as an opinion concerning such would require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d, 1372, 1377 (Fed. Cir 2007). The Board additionally notes that the Veteran submitted a letter dated September 2012 from his private provider. His provider indicated that he had reviewed the medical record from VA and paid particular attention to the Veteran's surgery to his right eye in 1992. The provider indicated that during the cataract surgery the capsule was broken, which was not a serious complication, and that otherwise the surgery went well. The provider went on to indicate that despite the capsule tear, the lens was in a good position and the final vision was good. The provider finished by saying that it would be hard to say that the cataract surgery was the cause of the retinal detachment which occurred years later. There is an additional private medical opinion, submitted in October 2012, handwritten and undated, which indicates that it is the author's opinion that there is no hope of getting compensation for the Veteran. An accompanying letter addressed to the Veteran's representative indicates that the private providers who offered opinions had full review of all of the relevant records. The letter indicated the name of the provider who authored the handwritten letter, indicating that he is a leading retina specialist. In summary, no additional evidence received since the February 1999 Board decision is new and material evidence that tends to show that the Veteran has an additional right eye disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Therefore, the additional evidence received since the February 1999 Board decision does not address the unestablished fact necessary to substantiate the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for an additional right eye disability; does not raise a reasonable possibility of substantiating such claim; and is not new and material. Accordingly, such claim may not be reopened. ORDER New and material evidence has not been received to reopen the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of right eye surgery to include loss of sight. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs