Citation Nr: 1510692 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 13-14 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of service connection for left eye cataract. 2. Entitlement to service connection for left eye cataract. 3. Entitlement to service connection for a right shoulder disability. 4. Entitlement to an initial compensable rating for left hilar calcification lung scars, status post tuberculosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty for training from March 1977 to August 1977 and on active duty from July 1978 to March 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA) and a September 2012 rating decision of the Anchorage, Alaska, RO of the VA. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2014. The Veteran subsequently submitted additional evidence in the form of private treatment records. He waived review of the evidence by the RO. See 38 C.F.R. § 20.1304(c) (2014). Waiver of RO review of the additional evidence is also presumed given that the Veteran's substantive appeal was filed on or after February 2, 2013. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. An October 2009 rating decision denied service connection for left eye cataract. The Veteran did not appeal this decision and no new and material evidence was received within the appeal period. Thus, the decision became final. 2. Evidence received since October 2009 raises a possibility of substantiating the service connection claim for left eye cataract. CONCLUSION OF LAW The criteria to reopen the claim of service connection for left eye cataract have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claim of service connection for left eye cataract. In October 2009, the RO denied that claim on the basis that the evidence failed to show that the Veteran's pre-existing left eye cataract was aggravated by service. The October 2009 decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued. See 38 C.F.R. § 20.1103 (2014); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). At the time of the October 2009 denial, the relevant evidence of record included the Veteran's service treatment records, post-service treatment records, and January 2009 and May 2009 VA examination reports. The evidence since October 2009 includes the Veteran's testimony that his vision worsened during service. See Hearing transcript (Dec. 2014). The Board finds that the Veteran's recent statements are new and material as they are not cumulative or redundant of the evidence previously of record, and they relate to a previously unestablished element of entitlement to service connection for left eye cataract, namely evidence that left eye cataract was aggravated during service. This is particularly so when the credibility of the statements is presumed for the purpose of the new and material evidence analysis. Accordingly, reopening of the claim is in order. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claim is addressed further in the remand section. ORDER New and material evidence has been submitted to reopen the claim of service connection for left eye cataract. REMAND In December 2014, the Veteran testified that his left hilar calcification lung scars, status post tuberculosis (lung disability) had worsened since his last VA examination in May 2012. As the evidence suggests a material change in the disability, reexamination is warranted under 38 C.F.R. § 3.327 (2014). As to the right shoulder disability, service treatment records show two incidents of muscle strain associated with the right shoulder. See STR (Nov. 2, 1982; Aug. 18, 1983). Post-service treatment records show that the Veteran reported insidious onset shoulder pain beginning in 2008. See Providence Sports Medicine Rehabilitation Therapy (Feb. 2, 2009). An August 10, 2008, x-ray revealed degenerative changes of the shoulders. In May 2011, VA received the Veteran's claim for service connection for a right shoulder disability. An October 2, 2012, orthopedic treatment record shows that the Veteran attributed his current right shoulder pain to heavy lifting in service. At an April 2012 VA examination, the Veteran reported recurrent shoulder pain since service. The examiner opined that the current right shoulder disability is not related to service. The rationale was that the Veteran's in-service muscle strain responded to modest treatment and there is no record of treatment for right shoulder problems until 2008. The examiner also noted that an extensive 2008 Social Security Administration disability evaluation does not mention shoulder pain. The examiner further explained that x-rays in 2008 show only slight or mild degenerative changes, which are compatible with the usual ageing process. An October 15, 2012, treatment record shows evidence of a superior labral anteroposterior tear, as well as infraspinatus and supraspinatus partial tears. During the December 2014 Board hearing, the Veteran reported that his shoulder disability has worsened and VA referred him for surgery in November 2014. VA treatment records are current through August 2012. Remand is needed to obtain the outstanding VA treatment records. 38 C.F.R. § 3.159(c)(2) (2014). The evidence suggests that the Veteran's current left eye cataract may have been aggravated during service. Upon entrance to service in July 1978, clinical evaluation of the eyes was abnormal and the examiner noted "congenital cataract" and amblyopia of the left eye and distance vision was 20/80 in the left eye. The service treatment records show that the Veteran's distance vision declined to 20/100. Post-service treatment records show that the Veteran reported eye trouble after a cricket ball stuck him in the eye as a child. See, e.g., Ophthalmiac Anchorage (Apr. 11, 2007). In November 20, 2008, the Veteran filed a claim for service connection for left eye cataract, which he attributed to blunt force trauma during service. At a January 2009 VA examination, the Veteran could not remember what struck him in the eye. The examiner concluded that the Veteran was a bad historian and that without the claims file, he was unable to determine the etiology of the current eye disability. In December 2014, the Veteran testified that left eye cataract was aggravated during service. Further medical development is needed to decide the claim. First, it is necessary to determine whether the cataract noted upon entrance to service was a congenital or acquired disorder. Second, if cataract was congenital, it is necessary to determine whether the cataract was a congenital "disease" or "defect". The terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. VAOPGCPREC 82-90 (July 18, 1990). Third, if the cataract was a congenital "defect", it is necessary to determine whether it was subject to a superimposed disease or injury during service. A congenital "defect" is not service connectable as it is not a disease or injury within the meaning of applicable legislation. 38 C.F.R. § 3.303(c)(2014). However, a congenital defect can be subject to superimposed disease or injury; if such a superimposed disease or injury occurs during military service, then service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Fourth, if the cataract was not a congenital defect, it is necessary to determine whether it underwent worsening during service and, if so, whether there is clear and unmistakable evidence that any such worsening was due to the natural progression of the disorder. See 38 C.F.R. § 3.303(b); see also VAOPGCPREC 82 (stating that congenital defects that are noted upon entrance to service are submitted to the same stringent legal standards that are applicable to acquired disabilities). Accordingly, the case is REMANDED for the following action: 1. Obtain complete VA treatment records from August 2012. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination by an appropriate medical professional. The examiner must review the entire claims file, to include all electronic files. The examiner is to determine the current severity of the Veteran's left hilar calcification lung scars, status post tuberculosis. 3. Schedule the Veteran for a VA examination by an appropriate medical professional. The examiner must review the entire claims file, to include all electronic files. The examiner is to address each of the following questions (a) to (e): (a) Is the "cataract, congenital" noted upon entrance to service in July 1978 a "congenital" or "acquired" disorder? In responding to this question, please respond to the Veteran's assertion that he was hit in the eye with a cricket ball prior to service. (b) If the cataract was "congenital", was it a "disease" or "defect"? The terms "disease" and "defect" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The term "defect" is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. (c) If the cataract was a congenital "defect", was it subject to a superimposed disease or injury during service? (d) If the cataract was not a congenital "defect" (i.e., it was an acquired disorder or a congenital disease), did it worsen (i.e., increase in severity) during service? If yes, is it UNDEBATABLE that such worsening was due to the natural progress of the disease? In responding to this question, please address the medical evidence of record as well as the Veteran's contentions that his vision worsened in and since service. (e) Is it at least as likely as not (i.e., at least equally probable) that a current left eye cataract is related to any in-service aggravation of a congenital disease or acquired disability? 4. Finally, after conducting any other development deemed necessary, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). _________________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014). Department of Veterans Affairs