Citation Nr: 1622343 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 14-24 432A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an eye disorder manifested by vision impairment. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1966 and from January 1967 to February 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. On the Veteran's July 2014 substantive appeal, he requested a Central Office Board hearing before a Veterans Law Judge. He was scheduled for such a hearing in July 2015; the Veteran did not attend his scheduled hearing, nor did he ask for the hearing to be rescheduled. His request is thus considered withdrawn. By the decision below, the previously denied claim of service connection for an eye disorder is reopened. The reopened issue is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction. FINDINGS OF FACT 1. In a rating decision of June 2007, the RO denied service connection for an eye disorder (characterized as visual impairment due to photo sensitivity); the Veteran was notified of the decision and of his appellate rights but he did not appeal. 2. The additional evidence received since the RO's decision in June 2007 is not redundant or cumulative evidence previously considered and it relates to an unestablished fact necessary to substantiate the claim of service connection for an eye disorder. CONCLUSIONS OF LAW 1. The June 2007 RO decision, which denied the Veteran's claim of service connection for an eye disorder, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 2. New and material evidence has been presented to reopen the claim of service connection for an eye disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Reopening a Previously Denied Claim Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). An exception to this rule is 38 U.S.C.A. § 5108 (West 2014), 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2015). 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 United States Court of Appeals for Veterans Claims (Court) has 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). Analysis A review of the procedural history shows the Veteran's initial claim for service connection for a bilateral eye disorder was denied in an October 1995 rating decision. The Veteran's representative submitted a timely notice of disagreement (NOD) in March 1996. A statement of the case was issued July 1996 and thereafter, a July 1996 substantive appeal was submitted by the Veteran. However, the Veteran submitted a December 2000 statement withdrawing all pending appeals, which extinguished the eye disorder appeal. Thereafter, in October 2006, the Veteran filed a claim to reopen his eye disorder claim. In an unappealed rating decision issued in June 2007, the RO denied service connection for the claims (characterized as visual impairment due to photo sensitivity) for lack of a current disability. Because the decision was not appealed, and because new and material evidence was not received within a year of the decision, the decision is final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2015). The evidence of record at the time of the June 2007 rating decision included the Veteran's service treatment records, including a November 1979 record which showed the Veteran received treatment to his eyes after being struck with a racquetball. He complained at that time of problems seeing light objects. All other service treatment records are silent for treatment to the Veteran's eyes or complaints of vision problems. A post-service March 1992 record showed the Veteran obtained a prescription for eyeglasses. The Veteran also submitted lay evidence, including a July 1996 substantive appeal in which the Veteran reported that his vision was 20/20 prior to his 1984 back surgery. He noted he began having problems with light while performing recruiting duties. He indicated he was seen by a doctor because of migraines from sunlight and the glare from paperwork, after which the doctor prescribed photo grey glasses. The additional evidence presented since the June 2007 rating decision consists of medical evidence which supports that the Veteran has current eye/vision problems and lay evidence in support. A March 2006 VA treatment record notes glaucoma suspect, including high intraocular pressure and high central corneal thickness, as well as presbyopia. Additionally, an April 2007 record reported ocular hypertension. The Veteran's new lay evidence includes a January 2012 statement in which he indicated that while on recruiting duty, he had to be treated for light problems at the Walsworth Army Hospital, in or about 1976-1980. He noted that he was told the cause of his problem was sunlight and the light he was exposed to from paperwork and his desk lamp. A June 2012 Veteran's statement indicated he was first diagnosed at Walsworth Hospital and that after retiring from service, his prescriptions were issued from VA Medical Centers (VAMCs) in East Orange, New Jersey, Philadelphia, Pennsylvania and Durham, North Carolina. Further, the April 2016 representative's brief indicated an alternate theory of entitlement, that the Veteran's PTSD disability, currently rated at 100 percent, has caused, or aggravated the visual impairment of the Veteran. The new evidence, when considered with the prior evidence, shows that the Veteran may have a current eye disorder manifested by vision impairment that could be linked to service. His service treatment records show treatment for his eyes in service after getting struck with a racquetball and post-service VA treatment records report current treatment for his vision. This medical evidence supports a "current disability," which was an element of entitlement to service connection that the RO found was not met in the June 2007 rating decision. The Board therefore finds that the medical and lay evidence received since the June 2007 rating decision is new and material as it is not cumulative or redundant of the evidence previously of record, and it relates to previously unestablished elements of entitlement to service connection. This is particularly so when the credibility of the statements is presumed for the purpose of the new and material evidence analysis. See Justus, 3 Vet. App. at 513. Accordingly, reopening of the claims is in order. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claims are further addressed in the remand section. ORDER The claim of entitlement to service connection for an eye disorder manifested by vision impairment is reopened; to this limited extent, the appeal of this issue is granted. REMAND Given that the Board reopened the claim, it must be remanded for de novo review by the RO. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). Additionally, further development is warranted on remand. As detailed above, the Veteran has contended that his current vision impairment began in service. The June 2012 statement indicated the condition occurred at the end of his service during his duties of recruiting. He noted the sensitivity to light began from sunlight, as well as exposure to light from paperwork and also from his desk lamp. The service treatment records show treatment for the Veteran's eyes. A November 1979 VA treatment record noted that the Veteran requested an eye evaluation due to being accidentally struck with a racquetball which caused him problems with seeing light objects. The rest of the service treatment records are silent for vision complaints or treatment. Further, an October 1999 statement indicated that the Veteran's vision was normal prior to his November 1984 cervical procedure and that after the surgery, his trouble with his eyes began. Additionally, the April 2016 appellate brief notes that the vision condition may be related to his service-connected PTSD. The representative reports the Veteran's PTSD is rated at 100 percent and that a psychiatric impairment makes an individual more susceptible to the impact of other problems. He indicates the enhanced impact should be discussed to determine whether his PTSD has caused, or aggravated, the visual impairment. The Board notes, congenital or developmental defects and refractive error of the eye are not considered to be a disease or injury with the meaning of the statutes governing service connection. 38 C.F.R. §§ 3.03(c), 4.9 (2015). See also Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003) (upholding VA regulation that refractive errors of the eye are a congenital defect and thus do not constitute an injury or disease incurred in service). In light of the above Veteran's medical and lay evidence discussing a current disability, the Board finds that the claim of service connection for an eye disorder must be remanded to afford the Veteran a VA examination to address the nature and etiology of the claimed disability. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran's various contentions, including his alternative theories of entitlement should be addressed by the examiner. In light of the remand, any relevant ongoing VA treatment records should be requested on remand. See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, records should be requested from the specific VAMCs that the Veteran referenced as to vision treatment. Accordingly, the case is REMANDED for the following actions: 1. Obtain complete VA treatment records since 2006. Include requests to the East Orange, Philadelphia and Durham VAMCs. 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. Thereafter, schedule the Veteran for a VA examination by an appropriate professional in connection with the eye disorder claim. The examiner must review the entire claims file. The examiner is to diagnose any current eye disorder, to include whether the Veteran has visual impairment due to photo sensitivity and whether there is refractive error. The examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that any current eye disorder found to be present had its onset in, or is otherwise related to, service. (i) The examiner is to address the Veteran's contention that an eye disorder began due to exposure to light during his recruiting duties in service. (ii) The examiner should discuss the November 1979 service treatment record showing the Veteran complained of light sensitivity after being struck with a racquetball. (iii) The examiner is to address the Veteran's contention that a vision disorder is related to his November 1984 back surgery. (iv) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an eye disorder that is caused by, or aggravated by, his service-connected PTSD. The term "aggravation" means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. 3. Finally, after completing the above development, readjudicate the claim on appeal, including the reopened claim on the merits. If any benefit sought remains denied, provide the Veteran and his representative 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 matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs