Citation Nr: 1337494 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-17 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for asthma. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a disability of the bilateral eyes. 3. Entitlement to service connection for bilateral eye disability, to include cornea scars and glaucoma. 4. Entitlement to a disability rating in excess of 30 percent for migraines. 5. Entitlement to a temporary total disability rating pursuant to 38 C.F.R. §§ 4.29, 4.30 for hospitalizations related to migraines and/or a heart condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which denied the benefits sought on appeal. Jurisdiction of the Veteran's claims file is currently at the Lincoln, Nebraska RO. The Board is aware that the RO originally characterized the claim for a bilateral eye disability as two separate claims-one for corneal scars, one for glaucoma. The Board finds, however, that the issue is best characterized as a broad claim for entitlement to service connection for a bilateral eye disability as noted on the cover page of this decision. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issues of entitlement to service connection for a bilateral eye disability and increased rating for migraines 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. Service connection for a bilateral eye disability and asthma was denied in an unappealed June 1996 rating decision. 2. Evidence received since the June 1996 decision is cumulative and redundant and does not raise a reasonable possibility of substantiating the service connection claim for asthma. 3. Evidence received since the June 1996 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral eye disability; such evidence is not cumulative or redundant of evidence already of record. 4. During the timeframe on appeal, the Veteran's migraines and/or heart condition did not necessitate inpatient treatment of 21 days or longer, surgery, or immobilization of a major joint. CONCLUSIONS OF LAW 1. The June 1996 decision that declined to reopen the service connection claim for asthma and denied service connection for a bilateral eye disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has not been presented to reopen a claim of entitlement to service connection for asthma. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. New and material evidence has been presented to reopen a claim of entitlement to service connection for a bilateral eye disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. The criteria for a temporary total evaluation for a service-connected disability, pursuant to the provisions of 38 C.F.R. § 4.29 or § 4.30, for treatment for migraines and/or a heart condition have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.29, 4.30 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in April 2008 and August 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claims. These letters informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). For purposes of evaluating the Veteran's request to reopen her claims of entitlement to service connection, the Board observes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that with regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then release a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. Id. The August 2008 letter informed the Veteran that her claims had been previously denied, and that new and material evidence was needed to substantiate the claims to reopen and described what would constitute such new and material evidence. The letter also specifically explained the basis of the prior denials on the merits, and directed the Veteran to submit any new and material evidence showing that her asthma and bilateral eye disability are related to service. This letter was fully compliant with the requirements set forth in Kent. Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence she is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of her claims. These arguments have referenced the applicable law and regulations necessary to reopen the service connection claims. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for her to prevail on her claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Claims to Reopen Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The 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. 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). The Court recently 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 evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). A. Asthma The RO originally denied entitlement to service connection for asthma in a March 1995 rating decision. The Veteran did not appeal the denial and it became final. Service connection for asthma was again denied in a June 1996 rating decision. Again, she did not appeal the denial and it also became final. The basis for the original denial in 1995 was that the Veteran's asthma existed prior to service and it was not aggravated beyond its natural progression during service. The 1996 rating decision provided the same basis for the denial of service connection for asthma and it was not reopened. The Veteran filed her most recent claim to reopen service connection for asthma in February 2008. The evidence of record at the time of the June 1996 rating decision was as follows: (1) the Veteran's service treatment records showing treatment for multiple asthmatic episodes, exercise induced asthma, and notations of a history of asthma since birth (including a history of childhood asthma attack noted on her enlistment physical examination), (2) November 1994 radiology report showing no acute abnormality of the lungs, (3) November 1994 VA general medical examination with an adult onset diagnosis, (4) December 1994 pulmonary function tests showing suboptimal patient effort and uninterpretable results, (5) an undated handwritten note from a physician indicating that the Veteran reports her asthma had worsened and was treating in 1991 and 1992 for it, and (6) reserve treatment records and private treatment records showing no current complaints of asthma. None of these records linked the Veteran's asthma to an event, injury, or disease incurred during service, nor did they show that the Veteran's asthma was aggravated during her period of active duty. The evidence of record received since the June 1996 rating decision includes: (1) VA treatment records, (2) the Veteran's statements indicating her belief that she should be entitled to service connection for asthma, (3) buddy statements that did not include any statements related to the Veteran's claimed asthma, and (4) private treatment records showing treatment for heart problems due to migraines. For evidence to be new and material in this matter, it would have to tend to show that the Veteran's asthma was incurred or aggravated by her military service. On review of the evidence above, the Board finds that the evidence received since June 1996, with respect to her asthma, is not material to the claim. Nothing in the added to the record relates to the reason the claim was originally denied; i.e., nothing therein shows or implies that the Veteran's asthma was caused by or aggravated by an event, injury, or disease during service. The evidence relates exclusively to current symptoms and/or a history of asthma symptoms, and does not show or imply any relationship between those symptoms and active service. The Board has also considered the Veteran's lay statements that her asthma is related to or aggravated by her military service, but these statements are merely cumulative of her statements of record at the time of the June 1996 decision. The Board has considered the asthma claim in light of Shade, 24 Vet App 110. Although Shade asserts that a case must be reopened if any previously-unproven element of service connection is addressed, in this case the evidence received since June 1996 does not pertain to any element of service connection that was previously missing. Accordingly, the circumstance cited by Shade is not applicable for the asthma claim. Although the additional treatment records and lay statements constitute new evidence, they are not material in that they do not show a possibility of substantiating the Veteran's claim as to this issue. Accordingly, the additional evidence received since June 1996 is not new and material and the claim may not be reopened. Until the Veteran meets her threshold burden of submitting new and material evidence sufficient to reopen her claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). B. Eyes The RO originally denied entitlement to service connection for bilateral eye disability in a March 1995 rating decision. The Veteran did not appeal the denial and it became final. Service connection for bilateral eye disability was again denied in a June 1996 rating decision. Again, she did not appeal the denial and it also became final. In an April 1997 rating decision found that there was no clear and unmistakable error for the previous denial of service connection for glaucoma. The basis for the 1995 denial was that the claim for service connection for eye problems was not well grounded. The basis for the 1996 denial was that there was no current corneal disability of the right or left eyes, and the currently diagnosed glaucoma was not shown to be related to her military service. The Veteran filed her most recent claim to reopen service connection for a bilateral eye disability in February 2008. Without the need to go into each piece of newly received evidence in detail, the Board finds that the evidence received since June 1996 and April 1997 is both new and material. The most important pieces of new evidence are the multiple buddy statements indicating the Veteran had an injury/infection to her eye when she was hit with a box, newly received VA treatment records showing treatment for eye problems, and private treatment records dated from 1996 showing treatment for suspected glaucoma and left cornea with a small area of pannus inferiorly. Accordingly, this evidence is sufficient to reopen the previously-denied claim for service connection for a bilateral eye disability. III. Temporary Total Rating Pursuant to 38 C.F.R. § 4.29, a total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. Notwithstanding that hospital admission was for disability not connected with service, if, during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.29. Pursuant to 38 C.F.R. § 4.30, a total disability rating is assigned, effective the date of hospital admission and continuing for one, two, or three months from the first day of the month following hospital discharge, when medical evidence shows that: the veteran underwent surgery necessitating at least one month of convalescence; or there are severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one or more major joints, a body cast, the necessity of home confinement, or the necessity of crutches or a wheel chair; or there is immobilization by cast, though no surgery, of one or more major joints. The 100 percent evaluation may be extended beyond three months and is followed by the schedular evaluation warranted by the evidence. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.30. The United States Court of Appeals for Veterans Claims (Court) has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury and recovery as the act of regaining or returning toward a normal or healthy state." Felden v. West, 11 Vet. App. 427, 430 (1998) (holding that entitlement to a total disability rating requires that a report, rendered near the time of a hospital discharge or an outpatient release, indicate that a surgical procedure had been performed that would require at least one month for the veteran to return to a healthy state). The Court has held that notations in the medical record as to the Veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provisions of 38 C.F.R. § 4.30. Id.; Seals v. Brown, 8 Vet. App. 291, 296-297 (1995). Furthermore, the Court has noted that the term "convalescence" does not necessarily entail in-home recovery. Temporary total ratings for convalescence are payable from the date of entrance into the hospital, and are awarded after discharge. 38 C.F.R. § 3.401(h)(2). The Veteran is service connected for migraines, and is in receipt of a 30 percent rating. She argues that she is entitled to a temporary total evaluation (100 percent) for a period of time between May 2007 and August 2007 due to her hospitalization for heart-related symptoms caused by her migraine medicine. She seeks a temporary total evaluation under 38 C.F.R. §§ 4.29 or 4.30. The Veteran was awarded service connected for acute myocardial infarction residuals as secondary to service-connected migraines (due to the medicine) in a March 2010 rating decision. She was assigned a 30 percent rating, effective February 22, 2008-the date she filed the claim for service connection for a secondary heart disability. There is evidence that the Veteran was seen at the hospital for heart and migraine related complaints since May 2007. The Veteran was hospitalized from May 25, 2007, to May 28, 2007, for acute myocardial infarction, and from August 5, 2007, to August 7, 2007, for unstable angina. These hospitalizations predated her request for service connection for a heart disability. The Veteran was again hospitalized from April 4, 2009, to April 5, 2009, for complaints of chest pain and migraine symptoms. Moreover, none of these hospitalizations were for more than 21 days, and the records do not show any surgeries for her service-connected migraines or heart disabilities requiring a period of convalescence. Although Felden defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury and recovery as the act of regaining or returning toward a normal or healthy state," the case also noted that a medical record was necessary to show that the Veteran required at least one month recovery after surgery. Here, the Veteran did not require surgery or hospitalization/in-patient treatment for her migraines or heart condition for 21 days or more. She was generally treated for her symptoms on an outpatient basis with occasional emergency room treatment. There are no clinical records showing that she required a period of recovery for migraines and heart problems as contemplated by 38 C.F.R. §§ 4.29 or 4.30. As such, the Board finds that she does not meet the criteria for a temporary total rating based on convalescence either under 38 C.F.R. §§ 4.29 or 4.30. There is a preponderance of the evidence against the claim, and as such, the benefit-of-the-doubt provisions do not apply. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER The Board having determined that new and material evidence has not been received, reopening of the claim of entitlement to service connection for asthma is denied. The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for a bilateral eye disability is granted. Entitlement to a total temporary evaluation for treatment for heart condition and migraines under the provisions of 38 C.F.R. §§ 4.29 or 4.30 is denied. REMAND A. Increased Rating for Migraines The Veteran was most recently afforded a VA examination for her migraines in November 2004. There is evidence that she was scheduled for a neurological evaluation in 2009, but she did not appear. The Veteran has essentially contended a worsening of her symptoms. Additionally as noted in VA treatment records, the Veteran reported that she was often scheduled for neurological evaluation/treatment and MRIs while she was away on reserve duty. Where a veteran asserts that a disability has worsened since his/her last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that clearly the most recent VA examination is too remote and a new examination is warranted. B. Service Connection for Eye Disability In light of the reopening above, the Board finds that further development is necessary prior to adjudication of the Veteran's claim for service connection for a bilateral eye disability. The Board finds that there is clinical evidence of some current pathology of the eyes, the Veteran's statements and buddy statements indicating a bilateral eye injury in service, in-service treatment for eye complaints, and the Veteran's contentions that she has experienced eye problems since service. As such, the Board finds that the Veteran should be afforded a VA examination of the eye to determine whether she has any current bilateral eye disability attributable to her period of active duty. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of her claimed bilateral eye disability. The claims file, including any pertinent evidence in electronic format, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide answers/opinions to the following: a. Describe with detail the nature of any current bilateral eye disability, other than any refractive errors. b. With respect to each currently present eye disability opine as to whether there is a 50 percent or better probability that the disability is etiologically related to the Veteran's active service. The examiner is also asked to comment on the documented in-service eye injury. The rationale for each opinion expressed must also be provided. 2. Schedule the Veteran for an appropriate VA examination to determine the frequency, duration, and severity of her service-connected migraines. The claims file must be made available to and reviewed by the examiner along with any pertinent records located in electronic format. The examiner should indicate whether the migraines are "prostrating in nature." The RO or the AMC should ensure that the examiner provides all information required for rating purposes, including a description of the functional effects of the disability on the Veteran's daily activities and on her ability to obtain or retain substantially gainful employment. A complete rationale for all opinions is required. 3. Then, the RO or the AMC should readjudicate the Veteran's claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and her representative and they should be afforded the requisite opportunity to respond before the case is 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. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs