Citation Nr: 1800687 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-16 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for bilateral eye disability. 2. Entitlement to service connection for bilateral eye disability, to include as secondary to service-connected Type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1960 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from A June 2014 rating decision of the Department of Veterans Affairs (VA) in Nashville, Tennessee. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Below, the Board reopens the previously denied service connection claim for a bilateral eye disability. The issue of entitlement to service connection for bilateral eye disability, to include as secondary to Type II diabetes mellitus, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed claim of service connection for bilateral defective vision was denied by the RO in a February 1989 rating decision. 2. The evidence received since the final February 1989 rating decision is new and material, and relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral eye disability. CONCLUSIONS OF LAW 1. The February 1989 rating decision, which denied the claim for service connection for bilateral eye disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen service connection for a bilateral eye disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In light of the favorable action taken herein by reopening the claim, the Board finds that further discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. New and Material Evidence - Applicable Law and Analysis The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a). 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of procedural background, in February 1989, the RO denied service connection for bilateral defective vision, determining that the Veteran's defective vision was "a constitutional or developmental abnormality and not a disability." The evidence of record at the time of the February 1989 rating decision included the Veteran's service treatment records (STRs) and his application for compensation. The Veteran was properly notified of the February 1989 decision. However, he did not appeal this rating decision; nor was new and material evidence received prior to the expiration of the appeal period or prior to the appellate decision if a timely appeal had been filed. 38 C.F.R. § 3.156 (b). Therefore, the decision became final one year after it was mailed to him. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104 (a). Thereafter, in June 2014, the Veteran sought to reopen his claim for service connection for bilateral eye disability, to include as secondary to service-connected Type II diabetes mellitus. The evidence received subsequent to the February 1989 rating decision includes VA medical treatment records, which show various diagnoses of bilateral eye disabilities aside from defective vision, to include right eye maculopathy, cataracts, Fuchs's endothelial corneal dystrophy, optic nerve drusen, and Descemet's stripping automated endothelial keratoplasty. This evidence is new and it is also material as it relates to the unestablished element of a current eye disability aside from a constitutional or developmental abnormality. Additionally, the Veteran has offered a new theory of entitlement; namely, that his bilateral eye disability is secondary to the service-connected Type II diabetes mellitus. New theories of entitlement are generally not considered new and material evidence, but rather an application to reopen the previously denied claim. See e.g., Ashford v. Brown, 10 Vet. App. 120 (1997). Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C.A. § 7104 (b) (West 2014)]," any evidence supporting the Veteran's new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C.A. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). In this case, at the time of the last final denial, the Veteran was not yet service-connected for Type II diabetes mellitus but newly received evidence demonstrates that his diabetes is now service connected as of December 2009. Accordingly, as that evidence supports the Veteran's new theory of causation it is considered both new and material. Accordingly, the evidence is new and material, and the claim for service connection for a bilateral eye disability is reopened. See Cox v. Brown, 5 Vet. App. 95 (1993). The appeal is granted to this extent only. ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral eye disability is reopened; the appeal is granted to this extent only. REMAND A remand is necessary to afford the Veteran a new VA examination with nexus opinion. The VA opinions currently of record do not adequately address the likely etiology of all currently diagnosed eye disabilities on both direct and secondary bases. Notably, while the Veteran has various diagnoses for his bilateral eye disability, only defective vision and cataracts were addressed during his May 2014 VA examination. Moreover, while the May 2014 examiner opined that the bilateral cataracts were not caused by his Type II diabetes mellitus, an opinion regarding whether his bilateral cataracts disability (or any other eye disability) was aggravated by his Type II diabetes mellitus was not rendered. Additionally, the February 2016 VA opinion only addressed whether the Veteran's current eye disabilities are related to in-service right eye maculopathy. 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. Obtain and associate with the claims file any outstanding VA medical evidence. 2. Provide the Veteran with a VA examination to determine the nature and etiology of any current bilateral eye disability. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. After a review of the record and examination of the Veteran, the examiner should address the following: (a) Identify all currently diagnosed bilateral eye disabilities, to include right eye maculopathy, cataracts, Fuchs's endothelial corneal dystrophy, optic nerve drusen, and Descemet's stripping automated endothelial keratoplasty. Note: A current disability is defined as one diagnosed since the beginning of the claim and during its pendency. (b) For EACH currently diagnosed bilateral eye disability, opine whether it had its onset during service or is in any way related to it. (c) For EACH currently diagnosed eye disability, opine whether it was caused by the Veteran's service-connected Type II diabetes mellitus. (d) For each currently diagnosed eye disability, opine whether it was AGGRAVATED by the Veteran's service-connected Type II diabetes mellitus. Although a complete review of the record is imperative, your attention is called to the following: (i) Regular optometry progress notes from the Memphis VMAC showing regular worsening in the Veteran's eyesight, as well as various indications that he was referred for diabetic eye examination; (ii) November 2009 diabetes VA examination noting "bilateral cataracts, difficult to visualize bilateral fundus"; May 2014 and February 2016 VA examination reports. The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. 3. After completing any other development that may be warranted, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and 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 or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs