Citation Nr: 1646542 Decision Date: 12/12/16 Archive Date: 12/21/16 DOCKET NO. 06-38 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a vision disability, to include as secondary to service-connected hypertension or headaches. 2. Entitlement to service connection for a vision disability, to include as secondary to service-connected hypertension or headaches. 3. Entitlement to an increased rating for chondromalacia with Osgood-Schlatter's disease of the left knee (hereinafter "left knee disability"), currently rated as noncompensable prior to September 28, 2010, 10 percent prior to April 5, 2011, and as 20 percent thereafter. REPRESENTATION Veteran represented by: Virginia Girard-Brady, Esq. ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1975 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The December 2010 rating decision denied the petition to reopen the claim of entitlement to service connection for a vision disability. The February 2012 rating decision granted entitlement to a 10 percent rating effective September 28, 2010 and to a 20 percent rating effective April 5, 2011 for the left knee disability. However, as that increase did not represent a total grant of the benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that, regardless of the determination reached by the RO in November 2011 with respect to whether new and material evidence has been received, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). In October 2015, the Board remanded the vision issue for further evidentiary development. The case is once again before the Board. As a final preliminary matter, the Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning entitlement to earlier effective dates for a total disability rating due to individual unemployability (TDIU) and for Dependents' Educational Assistance (DEA) benefits, as shown in the electronic claims file (VBMS). Such appeal is contained in the Veterans Appeals Control and Locator System (VACOLS) as an active appeal at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO's action on that appeal. As such, no action will be taken by the Board at this time, and the issues presently before the RO pertaining to earlier effective dates for a TDIU and for DEA benefits will be the subject of a later Board decision, if ultimately necessary. The issues of entitlement to service connection for a vision disability on the merits and entitlement to an increased rating for the left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A June 2007 rating decision that denied service connection for a vision disability was not appealed and no new and material evidence was submitted during the appeal period; the decision is final. 2. Some of the evidence received since that prior denial relates to unestablished facts necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been submitted, and the claim of entitlement to service connection for a vision disability is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's claim seeking entitlement to service connection for a vision disability was previously denied in a June 2007 rating decision. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108. 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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The evidence considered at the time of the June 2007 rating decision consisted of VA treatment records and a VA examination report. The claim was denied because there was no evidence of a service-related eye disability and no evidence of a current vision disability related to service-connected hypertension. The evidence received since that time includes VA treatment records and an October 2010 VA examination report associating the Veteran's visual disturbances with his service-connected headaches. Such evidence is presumed credible solely for the purposes of determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence supports a theory of causation for the vision disability as secondary to the service-connected headaches. The United States Court of Appeals for the Federal Circuit has recognized that VA must reopen a Veteran's claim if the evidence supporting a new theory of causation constitutes new and material evidence. See Boggs v. Peake, 520 F.3d 1330, 1336-1337 (Fed. Cir. 2008). Since such evidence relates to an unestablished fact necessary to substantiate the claim, namely, a nexus between the vision disability and a service-connected disability, it is new and material, and the claim of entitlement to service connection for a vision disability is reopened. ORDER The claim of entitlement to service connection for a vision disability is reopened, and to this extent only the appeal is granted. REMAND While further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Turning first to the vision claim, the Veteran asserts that his blurred vision and vision changes are related to or caused by his service-connected hypertension or service-connected headaches. Additionally, the Board notes that the Veteran's service treatment records contain a March 1981 complaint of "eye spots," in association with headaches and high blood pressure. In its October 2015 remand the Board noted that the medical evidence and VA examination reports of record were inconsistent concerning whether the vision changes reported by the Veteran were related to his service-connected hypertension or service-connected headaches. While some medical providers and examiners noted that hypertension causes blurred vision, other examiners opined that the Veteran's blurred vision was not related to his hypertension. Additionally, in an October 2010 VA examination, the examiner attributed the Veteran's vision changes to ophthalmologic migraines but did not provide a rationale for that conclusion. Therefore, the Board remanded the claim to provide a VA examination to determine whether the Veteran's complaints of blurred vision represented a disability that was caused or aggravated by his service-connected hypertension or service-connected headaches, or, if not, were a symptom of either condition. In March 2016, the Veteran was afforded a VA eye examination. The Veteran reported that during headaches he saw visual aura of squiggly/wavy lines. He also reported that his last eye examination was conducted by a private eye clinic in July 2015. The examiner diagnosed nuclear sclerotic cataracts in both eyes and opined that the Veteran's vision complaints were not likely due to his headaches or hypertension. Concerning the headaches, she pointed out that they were due to a brain event, separate from eye function. However, she also stated that the "eyes are not causing the vision blur and 'squiggly/wavy lines in his vision." Addressing hypertension, she noted that the hypertension is managed with medicine. The examiner also stated that the vision complaints were not aggravated by either condition, but did not provide a rationale; the examiner did not address the Board's inquiry as to whether the vision complaints were a symptom of either condition. The Board finds that the March 2016 examiner's opinion is inadequate to adjudicate the Veteran's claim. Therefore, an addendum opinion must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Turning to the left knee claim, the Veteran was last afforded a VA (contract) examination for his service-connected left knee disability in November 2011. At that time the Veteran did not report left knee instability or using a transcutaneous electrical nerve stimulation (TENS) unit, and the examiner noted no signs of instability. The record contains a June 2013 general medical examination report in which the Veteran reported that his condition has worsened due to instability, pain, and weakness, and that his doctor recommended surgery. Additionally, the Veteran was prescribed the use of a TENS unit in October 2015. As the Veteran has reported additional symptoms, and as it has been over five years since the last examination, the Board finds that a new VA examination should be scheduled. Additionally, the AOJ should attempt to obtain updated private treatment records, including records from the private eye clinic that conducted an eye examination in July 2015, as well as updated VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records dating from November 2016 to the present. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. Ask the Veteran to provide the names and addresses of all private medical care providers who have recently treated him for his vision, headaches, hypertension and left knee, to include the private eye clinic who conducted the July 2015 eye examination. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. After the above has been completed to the extent possible, return the claims file to the VA clinician who conducted the March 2016 eye examination. If that clinician is not available, send the claims file to an optometrist or ophthalmologist for review. If an additional examination is deemed necessary to respond to the questions presented, one should be scheduled. After reviewing the claims file, the clinician should respond to the following: a. Identify all currently diagnosed vision disorders manifested by blurred and/or spotty vision. In doing so, the clinician should note that the term "current" means occurring at any time during the pendency of the Veteran's claim; i.e., from December 2006 onward. The disorder need not be present at the time of the claims file review; rather it is sufficient if it previously existed during the pendency of the claim and then resolved prior to the review. b. With respect to each diagnosed vision disorder, the clinician should opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder arose during service or is otherwise related to any incident of service. Please explain why or why not. In providing this opinion, the clinician should comment on the significance, if any, of the Veteran's March 1981 complaint of dizziness, headaches, and seeing spots in his eyes during treatment for high blood pressure. c. If not directly related to service on the basis of question (b), is it at least as likely as not that the vision disability was caused by a service-connected disability, to include the Veteran's service-connected hypertension or service-connected headaches? Please explain why or why not. d. If not caused by a service-connected disability, is it at least as likely as not that the vision disability has been permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the hypertension or headaches? Please explain why or why not. e. If the clinician finds that the vision disability has been permanently worsened beyond normal progression (aggravated) by a service-connected disability, the clinician should attempt to quantify the degree of aggravation beyond the baseline level of the vision disability that is attributed to the service-connected disability. f. If the clinician is unable to diagnose a disability that has resulted in the vision complaints, the clinician should opine whether those vision complaints are a symptom of service-connected hypertension or service-connected headaches. A rationale for any opinions expressed should be set forth. If the clinician cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.) 4. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected left knee disability. The claims file should be made available for review, and the examination report should reflect that such review occurred. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All objective and subjective symptoms should be reported in detail. The examiner should also provide an opinion as to the range of motion throughout the appeal period (since June 2010) of the left knee in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with the range of the opposite undamaged joint. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). Finally, the examiner should provide opinion as to the functional limitations the Veteran has experienced as a result of his service-connected left knee disability and what impact, if any, it has on his occupational functioning. 5. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 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). ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs