Citation Nr: 1629929 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 14-29 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim for entitlement to service connection for bilateral superficial vascular keratitis. 2. Entitlement to service connection for an eye condition, to include bilateral superficial vascular keratitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1951 to October 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is currently with the RO in Baltimore, Maryland. The Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing in June 2016, and a transcript of this hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for an eye condition, to include bilateral vascular keratitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A June 1963 Board decision denied entitlement to service connection for bilateral superficial vascular keratitis; the Veteran did not perfect an appeal or submit new and material evidence within one year of the decision. 2. Evidence received since the June 1963 Board decision is new and material. CONCLUSIONS OF LAW 1. The June 1963 Board decision that denied entitlement to service connection for bilateral superficial vascular keratitis is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence has been received since the June 1963 Board decision, and the Veteran's claim for entitlement to service connection for bilateral superficial vascular keratitis is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran original claim for entitlement to service connection for bilateral superficial vascular keratitis was denied in a November 1952 RO decision and then by a June 1963 Board decision; the Veteran did not perfect an appeal to the Court of Appeals for Veterans' Claims or submit new and material evidence within one year of the decision. In September 2008, the Veteran submitted a claim for a bilateral eye transplant. The RO denied the Veteran's claim in October 2009 and June 2010 decisions. The Veteran has appealed. 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). However, 38 U.S.C.A. § 5108 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. VA denied the appellant's prior claim for bilateral superficial vascular keratitis because it determined that the Veteran's keratitis existed prior to service and was not permanently aggravated by the Veteran's active military service. However, at his June 2016 hearing, the Veteran insisted that his condition was worsened by his active service, and asserted that a training exercise exposing him to tear gas permanently aggravated his pre-existing keratitis. In support of this theory of entitlement, the Veteran submitted a March 2010 letter from a Dr. R.H., who reported that the Veteran has a current diagnosis of bilateral Salzmann's nodular degeneration of the cornea, status post cornea transplant. He explained that this condition is the result of chronic inflammation and irritation of the cornea, and it is conceivable that exposure to tear gas could cause such irritation. He speculated that the Veteran's current eye condition "could potentially have been caused by prior tear gas exposure." Although Dr. R.H.'s opinion concerning a relationship between the Veteran's current eye condition and his active service is highly speculative, it at least triggers a duty to obtain a VA medical opinion. Accordingly, this evidence is new and material, and the Veteran's prior claim is reopened. The issue of entitlement to service connection for a bilateral eye condition, to include bilateral superficial keratitis is addressed in the Remand section below. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, the Board is reopening and remanding the Veteran's claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER New and material evidence having been received, the Veteran's previously denied claim for entitlement to service connection for bilateral superficial vascular keratitis is reopened. REMAND The Veteran is seeking entitlement to service connection for an eye condition, to include bilateral superficial vascular keratitis. A September 1952 letter from the Johns Hopkins Hospital reflects that the Veteran was treated at the Wilmer Dispensary in May 1944, many years prior to his active service, with a two year history of recurrent eye inflammation. Service treatment records show that although the Veteran apparently reported no problems with his eyes at induction to service, in July 1952, he complained of visual problems and photosensitivity of two months duration, and at that time, reported a history of eye problems since childhood. Examination yielded a diagnosis of bilateral superficial vascular keratitis, which the examining physician determined rendered the Veteran unfit for service. In August 1952, the Veteran was referred to a civilian ophthalmologist, Dr. J.S.M., who confirmed the Veteran's diagnosis and also opined that the Veteran's vision was too poor to remain in service. Physical Evaluation Board proceedings were initiated and in September 1952, the PEB determined that the Veteran's bilateral keratitis rendered him unfit for service and that this condition pre-existed the Veteran's active military service and had not been aggravated by service. The Veteran was separated from service in October 1952. However, at his June 2016 hearing, the Veteran insisted that his condition was worsened by his active service, and asserted that a training exercise exposing him to tear gas permanently aggravated his pre-existing keratitis. In support of this theory of entitlement, the Veteran submitted a March 2010 letter from a Dr. R.H., who reported that the Veteran has a current diagnosis of bilateral Salzmann's nodular degeneration of the cornea, status post cornea transplant. He explained that this condition is the result of chronic inflammation and irritation of the cornea, and it is conceivable that exposure to tear gas could cause such irritation. He speculated that the Veteran's current eye condition "could potentially have been caused by prior tear gas exposure." Speculative medical opinions such as Dr. R.H.'s are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Furthermore, it is unclear from the available record whether Dr. R.H. is aware of the Veteran's history of recurrent keratitis, which is an inflammation of the cornea, and pre-existed the Veteran's military service, including any in-service chemical exposure. However, in McLendon v. Nicholson, 20 Vet App. 79 (2006), the Court stated that if suitable evidence of record is absent, a speculative medical opinion, along with evidence of a current disability and an in-service injury, disease, or event giving rise to an injury or disease, triggers VA's duty to afford the veteran a medical examination or obtain a medical opinion to develop his or her claim. Accordingly, the Board finds that a remand is required to clarify whether the Veteran's current eye condition is related to his active military service, to include aggravation of his pre-exiting vascular keratitis. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should schedule the Veteran for a VA examination of his eye condition by an ophthalmologist. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's pre-existing eye condition was permanently aggravated by the his active military service. As such training was typical during the Veteran's period of service, the examiner should assume that he was briefly exposed to tear gas as part of a routine training exercise. The examiner is asked to opine whether such exposure either permanently aggravated (worsened) the Veteran's pre-existing keratitis beyond the natural progression of the disability or resulted in some addition injury or disability of the eyes. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 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 2014). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs