Citation Nr: 18147541 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 18-24 069 DATE: November 6, 2018 ORDER The application to reopen a previously disallowed claim for service connection for an eye disorder is denied. REMANDED Entitlement to an increased (compensable) disability evaluation for bilateral hearing loss is remanded. Entitlement to an increased disability evaluation for lumbar spondylosis, associated with degenerative disc disease with herniated disc L4-5, currently rated as 40 percent disabling, is remanded. FINDINGS OF FACT 1. In an unappealed November 1975 rating decision, the RO denied service connection for an eye disorder. 2. The evidence received since the November 1975 rating decision as to the issue of entitlement to service connection for an eye disorder is cumulative in nature. CONCLUSIONS OF LAW 1. The November 1975 rating decision denying service connection for an eye disorder is final. 38 U.S.C. § 4005 (1975); 38 C.F.R. §§ 38 C.F.R. §§ 19.118, 19.153 (1975). 2. New and material evidence has not been received to reopen the claim for service connection for an eye disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1963 to March 1966. These matters come before the Board of Veterans’ Appeals (Board or BVA) on appeal from February 2012, August 2012, and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board's authority to review an adverse agency of original jurisdiction (AOJ) decision is initiated upon a claimant’s submission of a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C. §§ 7105(a); 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals,” or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 C.F.R. § 20.302(b)(1). In determining its jurisdiction, the Board recognizes that the VA adjudicative system is non-adversarial and pro-claimant in nature, wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101(d). The AOJ may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). Regarding the issue of whether new and material evidence to reopen a previously disallowed claim for service connection for an eye disorder and the issue of entitlement to an increased disability evaluation for lumbar spondylosis, the Board notes that after he initiated an appeal of the February 2012 and August 2012 rating decisions, the Veteran was issued a SOC in July 2015. Thereafter, the record reflects that the AOJ determined that the appeal had not been properly perfected. However, review of the record shows the Veteran did submit a timely September 2015 substantive appeal in lieu of a VA Form 9 in response to the July 2015 SOC. Accordingly, these issues are properly before the Board on appeal. See 38 C.F.R. § 19.35. The Board notes that, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). The Board acknowledges that the Veteran and his representative did not receive such notice with regard to the issues on appeal; however, the Veteran’s representative, in filing a motion to advance the docket with regard to the Veteran’s appeal of these issues, requested that the Veteran’s appeal of these issues be adjudicated without delay.  Whether new and material evidence has been received to reopen a previously denied claim for service connection for an eye disorder. In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. “New” evidence is defined as 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. 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 United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), 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). 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 as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). The RO denied service connection for an eye disorder in a November 1975 rating decision. The Veteran did not appeal that decision and, as such, the decision became final. See 38 U.S.C. § 4005 (1975); 38 C.F.R. §§ 38 C.F.R. §§ 19.118, 19.153 (1975). The November 1975 rating decision denied the Veteran’s claim for service connection of an eye disorder on the basis that there was no evidence indicating that an eye disorder was incurred in or caused by service; the rating decision noted that the Veteran complained of light sensitivity and headaches during service, but that the Veteran’s service treatment records did not reflect an eye injury during service. There was no evidence that the Veteran had a current eye disorder related to an injury, event, or disease during service. Evidence received since the November 1975 rating decision includes VA treatment records and statements by the Veteran. The VA treatment records do not reflect treatment for or a diagnosis of an eye disorder or residuals of an eye injury during service. Statements submitted by the Veteran reflect the Veteran’s report of a history of an eye injury during service and treatment for light sensitivity during service. The evidence submitted subsequent to the November 1975 rating decision as to the issue of entitlement to service connection for an eye disorder is not new and material. The VA treatment records and the Veteran’s statements do not demonstrate that the Veteran has a current eye disorder that is related to his service. The evidence is cumulative of the evidence already of record at the time of the last denial. The Veteran has not provided any new and material evidence to support the proposition that he has an eye disorder due to a disease or injury during service. Although the threshold for reopening a claim is low, the evidence presented in this case is insufficient to reopen the claim. REASONS FOR REMAND 1. Entitlement to an increased (compensable) disability evaluation for bilateral hearing loss is remanded. 2. Entitlement to an increased disability evaluation for lumbar spondylosis, associated with degenerative disc disease with herniated disc L4-5, currently rated as 40 percent disabling, is remanded. The Veteran was afforded a VA examination in March 2015 in connection with his bilateral hearing loss disability. He asserts that his symptoms are more severe than presently evaluated and has provided VA and private treatment records reflecting that his condition has worsened such that he now requires the use of hearing aids. He was scheduled for a VA audiology examination in March 2018, but failed to report. His representative has indicated that the Veteran was forced to miss the examination due to illness and has requested that the examination be rescheduled. The Veteran also asserts that the symptoms of his service-connected for lumbar spondylosis are more severe than presently evaluated. He was most recently afforded a VA examination in July 2011, and has not been provided with an examination which considers the current severity of his condition. As such, the Board finds that the Veteran should be afforded new VA examinations in order to accurately evaluate the current severity of his service-connected lumbar spondylosis, associated with degenerative disc disease with herniated disc L4-5, and bilateral hearing loss. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records relevant to the claims remaining on appeal should be associated with the Veteran’s claims file. These matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for the disabilities remaining on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA spine examination to ascertain the current severity and manifestations of his service-connected lumbar spondylosis, associated with degenerative disc disease with herniated disc L4-5. The claims file should be made available to the examiner(s) for review in connection with the examination. A complete rationale should be supplied for any opinions provided. 3. Also arrange to have the Veteran scheduled for a VA audiological examination in order to determine the current severity of his bilateral hearing loss. The examiner should record puretone thresholds, in decibels, at the frequencies of 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered. Any additional evaluations, studies, and tests deemed necessary by the examiner should also be conducted, and the examiner must fully describe the functional effects of the Veteran’s disability. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran’s complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 4. After completing all indicated development, the RO should readjudicate the Veteran’s claims for increased disability ratings for service-connected lumbar spondylosis, associated with degenerative disc disease with herniated disc L4-5, and bilateral hearing loss. If any benefit sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel