Citation Nr: 1421856 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 07-33 578 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for refractive error of the eye. 2. Entitlement to service connection for dry eye. 3. Whether new and material evidence was received to reopen a claim for service connection for a left shoulder disorder. 4. Entitlement to service connection for a left shoulder disorder. 5. Entitlement to an increased rating for hemorrhoids, rated 0 percent disabling until May 17, 2010 and 10 percent disabling thereafter. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a February 2007 rating decision issued by the Regional Office (RO) in Manila, Philippians. The Board notes that the Veteran initially claimed service connection for "eye condition." He was subsequently granted service connection for two eye conditions- hypertensive retinopathy and diabetic retinopathy- but continued his appeal for "eye condition." The remaining diagnosed eye conditions are refractive error and dry eye. The Veteran's various statements during the course of this appeal suggest that he is seeking service connection for refractive error. Therefore, the issue on the title page has been recharacterized to reflect the Veteran's situation. The Veteran testified before the undersigned Veterans Law Judge at a hearing held in January 2014. The issues of entitlement to service connection for a left shoulder disorder and dry eye are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran withdrew his claim for a higher rating for his hemorrhoids at the January 2014 hearing. 2. The Veteran's claim for service connection for a left shoulder disorder was previously denied in a rating decision that was dated in February 1995. The Veteran was notified of this decision and his appellate rights, but he did not perfect a timely appeal from this decision or submit additional relevant evidence within one year. 3. The evidence received since the February 1995 rating decision relates to an unestablished regarding the claim of service connection for a left shoulder disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant with respect to the issue of an increased rating for hemorrhoids have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The RO's rating decision in February 1994 denying service connection for a left shoulder disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2013). 3. New and material evidence has been received to reopen the claim of service connection for a left shoulder disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 4. Refractive error of the eye is not a disease or injury within the meaning of compensation benefits. 38 C.F.R. § 3.303(c) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn this appeal with respect to the issue of entitlement to an increased rating for hemorrhoids and, hence, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. Accordingly, the Board does not have jurisdiction to review the appeal of the rating assigned for hemorrhoids and it is dismissed. New and Material Evidence In a February 1995 rating decision, the RO denied service connection for the Veteran's claimed left shoulder disorder because although his left shoulder was treated in service the evidence did not show that the Veteran currently had a left shoulder disorder. The evidence considered at that time included service treatment records and a VA examination dated in December 1994 which showed no x-ray evidence of a left shoulder condition. The Veteran did not timely file a notice of disagreement with this decision or submit additional relevant evidence within one year. The February 1995 decision is therefore final. The Board must first ascertain in this case whether new and material evidence has been received. 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 un-established 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 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). In this case as previously noted the Veteran's claim was denied in February 1995 because there was no diagnosis of a left shoulder disorder. Evidence received since that time includes statements and testimony provided by the Veteran, VA treatment records, and additional examination reports. These include a September 2002 VA examination that diagnosed bilateral ACL joint arthritis and an August 2008 VA examination that indicated x-ray evidence of soft tissue calcification at the shoulder but otherwise normal study. The examiner acknowledged that there were functional effects of the left shoulder problem. At the time of the prior decision, there was no accepted evidence of post service disability, disease or residuals of injury. The added evidence is new and material because it addresses an element of service connection that was missing at the time of the prior denial, specifically, the existence of a current left shoulder disability. In essence, the added evidence cures a prior evidentiary defect. Based upon the reasons for the prior denial, the evidence is new, material and serves to reopen the claim. Therefore, the criteria to reopen the claim for a left shoulder disorder were met. Refractive Error of the Eye The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants with substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2013). The Board notes that the Veteran was sent multiple letters informing him of service connection criteria, including in March 2007, and review of the record shows that all duties pursuant to the VCAA were met. Evidentiary development of this particular claim included service treatment records, VA treatment records, statements and testimony by the Veteran, and VA examinations. In any event, VCAA notice with regard to this claim is not required because the law, not the facts, is dispositive. Thus, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000). The Veteran asserts that he first had difficulty seeing and needed glasses when he was in service. Service treatment records show that the Veteran developed refractive error in service which was corrected by glasses. The Veteran alleges that his vision continued to deteriorate since that time. As noted in the introduction, the Veteran is separately service connected for visual problems stemming from hypertensive and diabetic retinopathies. The Veteran is also diagnosed with refractive error. However, refractive error in and of itself is not a disability due to a disease or injury for which service connection may be granted. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Insofar as refractive error is not disability due to a disease or injury, service connection may not be granted. ORDER The appeal for a higher rating for hemorrhoids is dismissed. The application to claim for service connection for a left shoulder disorder is granted. Service connection for refractive error of the eye is denied. REMAND The Veteran's claim for a left shoulder disorder having been reopened, additional development is needed. While the Veteran's left shoulder was examined by VA in August 2008 the examiner did not provide a diagnosis or a nexus opinion. The shoulder examination was conducted together with an examination of the ankles and it is difficult to tell whether certain findings pertain to the shoulder, ankles, or both, such as the finding that there was arthritis including incapacitating episodes of arthritis. The Veteran should be afforded a new examination to determine whether there actually is a diagnosable left shoulder disorder and, if so, if it is related to service. Additionally, while the Veteran was afforded VA examinations of the eye and dry eye was diagnosed, an opinion has not been obtained concerning whether this is likely due to service or one of the Veteran's other service connected eye disorders. An opinion as to this matter should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination of his left shoulder. The examiner should review the claims file in conjunction with the examination. The examiner should indicate whether the Veteran presently has a left shoulder disorder. In doing so, the examiner should comment upon the September 2002 examiner's diagnosis of AC joint arthritis and the August 2008 examination findings pertaining to the left shoulder. If a left shoulder disorder is diagnosed, the examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that it onset during service or was caused or aggravated (made permanently worse) by a disease or injury in service. If arthritis is diagnosed, the examiner should also indicate whether it was at least as likely as not present within one year of the Veteran's service. The examiner must provide a complete rationale for his or her conclusions. If the examiner is unable to provide the requested opinion(s) without resort to undue speculation, he or she should explain why this is the case. 2. Obtain an opinion from a qualified examiner as to whether it is at least as likely as not (at least 50 percent likely) that the Veteran's diagnosed dry eye onset during service or was caused or aggravated (made permanently worse) by either a disease or injury that occurred during the Veteran's service or his service connected hypertensive and/or diabetic retinopathies. 3. After completion of the above development, the Veteran's claims should be re-adjudicated. If the determinations remain unfavorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs