Citation Nr: 1340113	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  10-20 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for glaucoma claimed as secondary to service-connected diabetes mellitus. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel





INTRODUCTION

The Veteran served on active duty from May 1963 to March 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals an appellant brief dated October 2013 that is pertinent to this appeal.  All other documents are either duplicative of the evidence in the claims file or irrelevant to the issues on appeal.

The reopened issue of entitlement to service connection for glaucoma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  In a final decision dated in March 2006, the RO denied the Veteran's claim of entitlement to service connection for glaucoma.  The Veteran was notified of the decision and did not appeal.

2.  Evidence added to the record since the March 2006 final decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for glaucoma.  


CONCLUSION OF LAW

New and material evidence has been presented to reopen a claim of entitlement to service connection for glaucoma.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for glaucoma is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  However, consideration of the merits of this issue is deferred pending additional development consistent with the VCAA.

Service connection for bilateral glaucoma was denied by rating action of March 2006.  It was held that it was not secondary to service connected diabetes.  The Veteran was notified and did not appeal; as such that decision became final.  38 U.S.C.A. § 7105.  That claim can be reopened with the receipt of new and material evidence on that matter.  See 38 C.F.R. § 3.156.  At the time of the decision, evidence on file included service treatment records, the result of a VA physical examination from 1977, and other medical records on file to that date.

Thereafter in July 2008, the Veteran again filed for service connection for glaucoma, asserting that it was secondary to his service-connected diabetes mellitus.  In support of the claim, the Veteran submitted a private medical record dated December 2000 noting suspicion of glaucoma in both eyes.  

A December 2008 rating decision denied reopening the claim.  The Veteran appealed the rating decision in a June 2009 notice of disagreement, and in March 2010, VA provided the Veteran with an examination to address whether his glaucoma was caused or aggravated by his diabetes.  However, as discussed below in the remand, that examination was inadequate for rating purposes.

The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  New evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it at least triggers VA's duty to assist by providing a medical opinion.  Shade, 24 Vet. App. 110.  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Board finds that the evidence received since the March 2006 rating decision is new and material.  The March 2010 VA examination was not previously submitted to agency decisionmakers and it relates to the nexus between the Veteran's glaucoma and diabetes, i.e., an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  Moreover, there is now evidence of the possibility of glaucoma from an earlier date.  The evidence could be said to raise a reasonable possibility of substantiating the claim because VA's failure to provide an adequate examination triggered the duty to assist and provide another one.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Shade, 24 Vet. App. 110.  On this basis, and consistent with the holding in Shade, the Board finds that new and material evidence has been received to reopen the claim for service connection for glaucoma. 


ORDER

New and material evidence having been received, the claim of entitlement to service connection for glaucoma claimed as secondary to service-connected diabetes mellitus is reopened. 



REMAND

The Veteran has alleged that his service-connected diabetes mellitus caused his current glaucoma.  The March 2010 VA examiner opined that because the appearance of the optic nerve had remained consistent from its initial presentation, "it is less likely than not that this Veteran's diagnosis of diabetes (diagnosed in 2006) has affected his glaucoma, as no progression has been noted since 2003."  Although the examiner appears to have addressed whether the Veteran's diabetes had aggravated his glaucoma, she did not address whether his diabetes caused glaucoma.  While an opinion might be inferred, that is not sufficient to withstand possible judicial scrutiny. 

Moreover, the examiner stated that the Veteran's diabetes onset in 2006; however, a March 2004 VA medical record noted he was diagnosed with diabetes mellitus around February 2004.  The examiner also stated that his glaucoma began in 2000.  However, a private medical record dated December 2000 noted only suspicion of glaucoma, and VA medical records do not document any complaints related to vision until October 2002.  A diagnosis of glaucoma does not appear in the VA medical records until May 2003.  If the examiner considered suspicion of glaucoma to be equivalent to a diagnosis, she did not state that.  

Accordingly, the case is REMANDED for the following action:

1.  Forward the entire claims file to the examiner who prepared the March 2010 VA opinion or, if that examiner is unavailable, to another suitably qualified VA examiner. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records and lay statements.  The rationale for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion.  

The examiner should specifically identify when the Veteran's diabetes and glaucoma onset and provide a supporting rationale for her conclusions.  In making this determination, the examiner should take into consideration the evidence in the claims file, to include the Veteran's assertion in the May 2010 VA Form 9 that he experienced symptoms of diabetes prior to symptoms of glaucoma.  

The examiner should then opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's glaucoma was caused by his service-connected diabetes mellitus.  A fully supported rationale should be provided.

2.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant 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. 2013).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs