Citation Nr: 1624596 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 13-09 399 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for bilateral optic nerve atrophy and, if so, whether service connection is warranted. 2. Entitlement to a compensable disability evaluation for the Veteran's right eye corneal scars. 3. Entitlement to an initial compensable disability evaluation for the Veteran's non-prostrating headaches. 4. Entitlement to a disability evaluation in excess of 30 percent for the Veteran's right total knee arthropathy residuals. 5. Entitlement to an initial disability evaluation in excess of 20 percent for the Veteran's right hip strain. 6. Entitlement to an initial disability evaluation in excess of 20 percent for the Veteran's left hip strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from June 1965 to July 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Philadelphia, Regional Office (RO) which, in pertinent part, established service connection for both right hip strain and left hip strain; assigned 10 percent evaluations for those disabilities; and effectuated the awards as of April 12, 2010. In June 2011, the Veteran submitted a notice of disagreement (NOD) with the evaluation of his right and left hip disorders. In March 2012, the RO established service connection for non-prostrating headaches; assigned a noncompensable evaluation for that disability; effectuated the award as of June 21, 2011; determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for bilateral optic nerve atrophy; and denied a compensable evaluation for his right eye corneal scars. In April 2012, the Veteran submitted a NOD with the determination that new and material evidence had not been received to reopen his claim of entitlement to service connection for bilateral optical nerve atrophy and the denial of compensable evaluations for both his headaches and his right eye corneal scars. In August 2012, the RO recharacterized the Veteran's right knee disability as right total knee arthropathy residuals and assigned a 100 percent evaluation for the period from July 12, 2012, to August 31, 2013, and a 30 percent evaluation for the period on and after September 1, 2013, for that disability. In November 2012, the RO determined that its April 2011 rating decision was clearly and unmistakably erroneous in failing to assign initial 20 percent evaluations for the Veteran's right hip strain and his left hip strain. In January 2013, the RO issued a statement of the case (SOC) to the Veteran which addressed the issues of whether new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for bilateral optic nerve atrophy; an initial compensable evaluation for his non-prostrating headaches; and a compensable evaluation for his right eye corneal scars. In March 2013, the Veteran submitted an Appeal to the Board (VA Form 9) from the determination that new and material evidence had not been received to reopen his claim of entitlement to service connection for bilateral optic nerve atrophy and the denial of both a compensable evaluation for his right eye corneal scars and an initial compensable evaluation for his non-prostrating headaches. In July 2014, the RO denied an increased evaluation for the Veteran's right total knee arthropathy residuals. In September 2014, the Veteran submitted a NOD with that decision. In May 2015, the RO issued a SOC to the Veteran which addressed the issue of an increased evaluation for his right total knee arthropathy residuals. In July 2015, the Veteran submitted an Appeal to the Board (VA Form 9) from the denial of an increased evaluation for his right knee disability. In September 2015, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. The Board has reviewed both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of the Veteran's appeal should take into consideration the existence of this electronic record. As to the issue of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for bilateral optic nerve atrophy, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board observes that the Veteran submitted a November 2015 Appeal to the Board (VA Form 9) which both encompassed the identical issues addressed at the September 2015 Board hearing and requested a videoconference hearing before a Veterans Law Judge. A subsequent November 2015 VA letter to the Veteran informed him that he had been placed "on the list of persons wanting to appear at our office for an in-person hearing before the Board of Veterans Appeal (BVA) for what is commonly called a 'Travel Board' hearing." As the November 2015 Appeal to the Board (VA Form 9) addressed solely issues already on appeal for which the Veteran had already presented testimony before the undersigned Veterans Law Judge and the Veteran advances no contentions as why the September 2015 Board hearing was in any way deficient, the Board finds that the September 2015 Board hearing satisfied the Veteran's right to a hearing under 38 C.F.R. § 20.700(a) (2015). Sufficient cause has not been shown that the Veteran should be afforded a second hearing. See 38 C.F.R. § 20.717 (2015). The issues of service connection for a bilateral acquired eye disorder to include injury residuals, optic nerve atrophy, and glaucoma and the evaluation of the Veteran's right eye corneal scars, non-prostrating headaches, right total knee arthropathy residuals, right hip strain, and left hip strain are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. In February 2003, the RO denied service connection for bilateral optic nerve atrophy. The Veteran was informed in writing of the adverse determination and his appellate rights in February 2003. The Veteran did not subsequently submit a NOD with the decision. 2. Additional VA clinical documentation received within one year of notice of the February 2003 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral optic nerve atrophy. CONCLUSION OF LAW The February 2003 rating decision denying service connection for bilateral optic nerve atrophy is not final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board determines that the February 2003 rating decision denying service connection for bilateral optic nerve atrophy is not final and remands the issue of service connection for a bilateral acquired eye disorder to include injury residuals, optic nerve atrophy, and glaucoma to the AOJ for additional action to the RO for additional action. Therefore, no further discussion of VA's duties to notify and to assist is necessary. II. Application to Reopen Service Connection for Bilateral Optic Nerve Atrophy Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2015). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 of record at the time of the last prior 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). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period 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). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In September 1999, the Board determined that the Veteran had not submitted a well-grounded claim of entitlement to service connection for bilateral optic nerve atrophy and denied the claim. In February 2003, the RO adjudicated the Veteran's claim for service connection for bilateral optic nerve atrophy on the merits under the provisions of Section 7 of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) and denied the claim "since this condition neither occurred in nor was caused by service." The Veteran was informed in writing of the adverse determination and his appellate rights on February 28, 2003. The Veteran did not subsequently submit a NOD with the decision. The evidence upon which the February 2003 rating decision denying service connection was formulated may be briefly summarized. Naval treatment records dated in July 1965 and August 1965 convey that the Veteran complained of bilateral eye pain, burning, and irritation. An assessment of "keratoconjunctivitis again" was advanced. The report of a December 1984 VA eye examination notes that the Veteran was diagnosed with right eye periorbital lid edema and corneal scars and "[ruleout] glaucoma." A November 1999 written statement from C. Bash, M.D., states that the Veteran was diagnosed with "glaucoma and resultant bilateral optic nerve atrophy" likely secondary to his keratoconjunctivitis that his (sic) had in service by way of the angle closure process." A February 17, 2004, VA optometry consultation states that the Veteran presented a history of an "injury while in service in 1960's got poison in eyes went to hospital for vision in [right eye] has been reduced since this happened." Impressions of "CHA [both eyes] with presbyopia" and "possible end stage [primary open angle glaucoma]" were advanced. The cited VA clinical documentation was received into the record within the year following notice of the February 2003 rating decision. It is of such significance that it raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral optic nerve atrophy. The new and material documentation was not addressed by any adjudicatory action prior to the March 2012 rating decision. Therefore, the Board finds that the February 2003 rating decision is not final. 38 C.F.R. § 3.156(b). Given this fact and as additional action is required, the Board will address the issue of service connection for a bilateral acquired eye disorder to include injury residuals, optic nerve atrophy, and glaucoma in the REMAND portion of this decision below. ORDER The February 2003 rating decision denying service connection for bilateral nerve atrophy is not final. REMAND Bilateral Eye Disorder The Veteran asserts that service connection for a bilateral acquired eye disorder is warranted as he sustained in-service bilateral eye injuries when he walked over a grate at the Great Lakes naval training facility and a noxious vapor or poison emanated from the grate into his eyes. Naval treatment records dated in July 1965 and August 1965 convey that the Veteran complained of bilateral eye pain, burning, and irritation. An assessment of "keratoconjunctivitis again" was advanced. Service connection has been established for right eye corneal scars. At the September 2015 Board hearing, the Veteran testified that: while he was at the Great Lakes Naval Recruit Training Command in 1965, he passed over a grate; he recalled that "coming out that grate was like several different colors of, I don't know what it was;" "the minute that I hit that, my eyes caught on fire;" "I'm on the sidewalk laying down kicking and my eyes is burning and burning;" "within five or 10 minutes, my eyes were swollen like I had two grapefruits;" "I spent maybe 25 days to a month in the hospital on base;" "I would go back and forth to the, to the Naval Hospital in Chicago;" "they came up with, uh, conjunctivitis, but I don't think that was what happened to me;" and "I'm thinking that the chemical that was coming out of that drainage was what happened to me." Clinical documentation of the cited hospitalization and treatment at the Great Lakes, Illinois, and Chicago, Illinois, naval medical facilities is not of record. When a veteran identifies clinical treatment associated with specific military facilities, the VA has a duty to either undertake an exhaustive record search or explain why such action is not justified. Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992). Clinical documentation dated after October 2014 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The clinical documentation of record is in conflict as to the nature and etiology of the Veteran's bilateral acquired eye disabilities. The November 1999 written statement from C. Bash, M.D., states that the Veteran was diagnosed with "glaucoma and resultant bilateral optic nerve atrophy" likely secondary to his keratoconjunctivitis that his (sic) had in service by way of the angle closure process." The report of an October 2014 VA optometry examination states that the Veteran was diagnosed with "recurrent corneal erosions [right eye] more likely than not secondary to eye infection while on active duty;" "glaucoma not likely secondary to military service;" and "reduced vision due to cataracts not likely secondary to his service-connected eye condition or military service." The examiner did not address Dr. Bash's November 1999 opinion. The VA and private examination documentation of record does not address the relationship, if any, between the Veteran's bilateral acquired eye disabilities and his service-connected right eye corneal scars. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). The United States Court of Appeals for Veterans Claims (Court) has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for right eye corneal scars, non-prostrating headaches, right total knee arthropathy residuals, left knee injury residuals with internal derangement, right hip strain, and left hip strain. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the apparent conflict in the clinical record as to the etiology of the Veteran's bilateral acquired eye disabilities and the cited examination deficiencies, the Board finds that further VA ophthalmological evaluation would be helpful in resolving the issues raised by the instant appeal. Right Eye Corneal Scars The Board finds that the issue of a compensable evaluation for the Veteran's right eye corneal scars is inextricably intertwined with the issue of service connection for a bilateral acquired eye disorder to include injury residuals, optic nerve atrophy, and glaucoma. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Non-Prostrating Headaches The Veteran advances that an initial compensable evaluation is warranted for his service-connected headaches as they are productive of significant and incapacitating symptoms. At the September 2015 Board hearing, the Veteran testified that he experienced daily headaches which require medication. The Veteran was last afforded a VA examination which addressed his headaches in October 2011. The October 2011 examination report states that the Veteran was diagnosed with non-prostrating headaches which occurred "approximately 2 times a week." Given that apparent increase in severity of the Veteran's headache disorder since 2011, the Board finds that further VA evaluation is necessary. Right Total Knee Arthropathy Residuals At the September 2015 Board hearing, the Veteran testified that his right total knee arthropathy residuals are manifested by limitation of motion and giving way of the joint and require the use of a knee brace and narcotic medication. He stated that he had fallen many times due to his right knee disability. The Veteran has not been afforded a VA knee evaluation following his right total knee replacement. Such an examination is necessary to adequately determine the current nature and severity of the Veteran's right total knee arthropathy residuals. Right Hip Strain and Left Hip Strain The Veteran has submitted a timely NOD with the initial evaluation of both his right hip strain and his left hip strain. The AOJ has not issued a SOC which addresses those issues. Where a Veteran has submitted a timely NOD with an adverse decision and the AOJ has not subsequently issued a SOC addressing the issue, the Board should remand the issue to the AOJ for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Record Center (NPRC) and/or the appropriate service entity and request that a search be made of the records of the Great Lakes, Illinois, and Chicago, Illinois, naval medical facilities for the relevant time periods for any entries pertaining to the Veteran. If no records are located, a written statement to that effect should be incorporated into the record. 2. Contact the Veteran and request that he provide information as to all treatment of his recurrent bilateral acquired eye disorders and service-connected right eye corneal scars, non-prostrating headaches, and right total knee arthropathy residuals after October 2014, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If any identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2015). 3. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran, including that provided after October 2014. 4. Schedule the Veteran for a VA ophthalmological examination in order to assist in determining the nature and etiology of his bilateral acquired eye disabilities. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified bilateral acquired eye disorder had its onset during active service; is related to the Veteran's in-service eye symptoms and alleged chemical exposure; otherwise originated during active service; and/or is related to and/or increased in severity beyond its natural progression due to his right corneal scars and other service-connected disabilities. Service connection is currently in effect for right eye corneal scars, non-prostrating headaches, right total knee arthropathy residuals, left knee injury residuals with internal derangement, right hip strain, and left hip strain. All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. 5. Schedule the Veteran for a VA examination in order to determine the current nature and severity of his service-connected headache disorder. The examiner is asked to express an opinion as to the impact of the Veteran's non-prostrating headaches upon his vocational pursuits. All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. 6. Schedule the Veteran for a VA joint examination in order to determine the current nature and severity of his service-connected right total knee arthropathy residuals. The examiner is asked to express an opinion as to the impact of the Veteran's right knee disability upon his vocational pursuits. All relevant medical records must be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions should be provided. 7. Issue a SOC to the Veteran which addresses the issues of an initial evaluation in excess of 20 percent for the Veteran's right hip strain and an initial evaluation in excess of 20 percent for his left hip strain. The Veteran should be given the appropriate opportunity to respond to the SOC. 8. Then readjudicate the remaining issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claims for benefits, to include a summary of the evidence considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned 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 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs