Citation Nr: 18143815 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-19 052A DATE: October 22, 2018 REMANDED Entitlement to service connection for anatomical loss of the right eye and glaucoma condition of the left eye is remanded. REASONS FOR REMAND The Veteran’s DD-214 form indicates that he served on active duty from February 1954 to April 1959, but that he had a total of 7 years, 10 months and 24 days of active duty service. A Certification of Military Service within the evidence of record also notes that he was a member of the U.S. Army from May 1951 to February 1954. The Veteran contends that he was a combat Veteran who served in the Korean conflict and that there are missing military service records that would demonstrate such to support his claim. Additionally, the Board notes that the Veteran’s claim for entitlement to service connection for anatomical loss of the right eye and glaucoma condition of the left eye was originally denied in a September 2010 rating decision of a Regional Office (RO). The Veteran did not submit any new evidence or appeal that decision within a year, but he filed a new claim in November 2014. The RO then denied the claim again in a January 2015 rating decision. The Board has considered the rule that, in general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. However, the Board also notes that VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of 38 C.F.R. § 3.156 (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156 (c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In the instant case, the RO denied the Veteran’s claim in the September 2010 rating decision, stating that VA treatment records showed that the Veteran was involved in an October 2008 motor vehicle accident, and that this accident is what caused injury to his right eye. In the January 2015 rating decision, additional VA treatment records from as early as the year 2000 were associated with the claims file and considered, and they indicated that the Veteran was receiving treatment for both eyes by VA as early as 2000. Therefore, the provisions of 38 C.F.R. § 3.156 (c) are applicable to the present claim, and it is reviewed on a de novo basis. Entitlement to service connection for anatomical loss of the right eye and glaucoma condition of the left eye is remanded. The Veteran has consistently reported throughout the record that he injured his eye during the Korean Conflict when an enemy bombardment occurred and mortar shells fell near the combat area where he was. In a buddy statement received from fellow serviceman P.J.D.M. he indicated that, during the incident, the Veteran had to be removed from the line of combat to receive medical attention due to the explosion flash seriously affecting his vision. The Veteran contends that there are missing military personnel records that would support this contention, as he received a ribbon, decorations, a badge and medals like the Korean Service Medal and Campaign Medal. Service treatment records (STRs) are silent as to the asserted incident and injury; and military personnel records associated with the claims file do not indicate the Veteran’s participation in combat during the Korean Conflict. In cases like this, where there is no evidence in the STRs of an in-service eye injury, if the Veteran engaged in combat with the enemy, such evidence would not be required, either for the Board or for a VA examiner. The purpose of the combat presumption is to relieve veterans of the burden of assembling such records, given that they typically do not survive combat. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). A finding that the Veteran engaged in combat would be significant because a combat veteran can use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). See also 38 C.F.R. § 3.304(d). As to the Veteran’s assertion that he was involved in combat during the Korean Conflict, there is no record that he received any medals indicative of combat. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated September 11, 2015) (listing Decorations that are evidence of combat participation). However, the absence of such is not dispositive of whether the Veteran engaged in combat. A finding that a veteran engaged in combat with the enemy under 38 U.S.C. § 1154 (b) and 38 C.F.R. § 3.304 (d) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general “combat area” or “combat zone” but did not themselves. VAOPGCPREC 12-99 (October 18, 1999). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). The United States Court of Appeals for Veterans Claim (Court) has held that receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). As such, the Veteran’s claim must be remanded to obtain all missing military personnel records and any other significant information that would support his contention that the Veteran participated in combat during the Korean Conflict. Moreover, if such information is obtained, the 1154(b) criteria may be applicable. Reeves, 682 F.3d at 999. The matter is REMANDED for the following action: 1. Make all appropriate attempts to locate the Veteran’s possibly missing military personnel records and associate them with the claims file. In particular, obtain the missing DD-214 that demonstrates active duty service from May 1951 to February 1954, to include any documentation that supports participation in the Korean Conflict, unless it is found that further efforts to obtain this or any other military personnel records are futile. 2. After additional, pertinent personnel records are obtained, send the claims file to an examiner to provide an opinion with regard to whether the Veteran’s eye disabilities were incurred in or aggravated by service. If participation in combat can be conceded, inform the examiner that evidence in the STRs of an in-service eye injury is not required. (Continued on the next page)   3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel