Citation Nr: 18156452 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 11-01 473 DATE: December 11, 2018 ORDER New and material evidence having been received, the claim for service connection for a bilateral eye disorder is reopened, and to that extent only, the appeal is granted. An effective date earlier than October 31, 2008, for the payment of compensation benefits in lieu of receipt of military drill pay is denied. REMANDED Service connection for a bilateral eye disorder is remanded. Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A 1971 rating decision denied the Veteran’s claim for service connection for a bilateral eye disorder; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. Some of the evidence received since the June 1971 final denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral eye disorder. 3. The June 1971 rating decision granted service connection for residuals of a fracture to the first and second metacarpals of the Veteran’s right hand; a 10 percent rating was assigned effective September 7, 1970. 4. In a letter dated August 5, 1971, in reference to his award of disability compensation benefits, the Veteran was informed that the RO had received information that he was in receipt of military drill pay; that the law did not allow concurrent payments of VA compensation with active or inactive duty training pay; that it would be necessary for him to waive VA compensation for the number of days during which he was in drill pay status and for periods of active duty training by submitting a statement providing the necessary information; and that his VA compensation payments might be discontinued if no answer was received. He did not respond and his benefit payments were discontinued in October 1971. 5. The Veteran filed a new claim for compensation in October 2008; there is no evidence he elected to receive VA compensation rather than military drill pay prior to this date. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a bilateral eye disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for an effective date earlier than October 31, 2008, for the award of VA compensation are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400(j), 3.700(a)(1)(iii) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from September 1968 to September 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in January 2013. A transcript is of record. The claims were remanded by the Board in May 2015 for additional development. 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral eye disorder The Veteran’s claim for service connection for a bilateral eye disorder was initially denied by way of a June 1971 rating decision. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2018); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Veteran filed a claim to reopen to establish service connection for a bilateral eye disorder in October 2008. In the June 2009 rating decision that is the subject of this appeal, the RO treated the claim as an original one and denied it on the merits. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings/actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). 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. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The June 1971 final rating decision denied the claim because the Veteran had refractive error of the eyes, which is a constitutional or developmental abnormality and not a disability subject to VA compensation. Evidence added to the record since the June 1971 rating decision includes VA treatment records indicating that the Veteran has been diagnosed with bilateral senile nuclear cataract; bilateral lattice degeneration; and right eye epiretinal membrane. This evidence is new. It is also considered material, as it reflects a current bilateral eye disability. Accordingly, the Board finds that new and material evidence has been received and the claim for service connection for a bilateral eye disorder is reopened. See Shade, 24 Vet. App. 110. The underlying claim is addressed in the remand portion of this decision, below. 2. Entitlement to an effective date earlier than October 31, 2008, for the payment of compensation benefits in lieu of receipt of military drill pay The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 (2012) and 38 C.F.R. § 3.400 (2018). Unless otherwise provided, the effective date of an election of VA compensation benefits is the date of receipt of election, subject to prior payments. 38 C.F.R. § 3.400 (j) (2018). Regarding what benefits to elect, VA law and regulations provide that a veteran is prohibited from receiving VA disability compensation for any period the veteran is receiving active service pay. See 38 U.S.C. § 5304(c) (2012); 38 C.F.R. §§ 3.654, 3.700 (2018). This includes active duty pay, drill, and active duty for training payments, and inactive duty for training payments made to Reservists. Id. Reservists may waive their compensation pay for periods of field training, instruction, other duty, or drills; such waiver may include prospective periods and contain a right of recoupment for the days for which the reservist did not receive payment for duty by reason of failure to report for duty. 38 C.F.R. § 3.700 (a)(1)(iii). Service connection for residuals of a fracture to the first and second metacarpals of the Veteran’s right hand was granted in a June 1971 rating decision; a 10 percent rating was assigned effective September 7, 1970. The award was implemented in June 1971, with a retroactive payment of $220.00. In a July 22, 1971 Memorandum, the Veteran’s Commanding Officer advised VA that the Veteran was in drill pay status, was required to drill one weekend a month, and which would pay $35.96 per drill weekend (greater than the $25 per month in VA compensation). In a letter dated August 5, 1971, which was sent in reference to the award of disability compensation benefits, the Veteran was informed that the RO had received information that he was in receipt of military drill pay; that the law did not allow concurrent payments of VA compensation with active or inactive duty training pay; that it would be necessary for him to waive VA compensation for the number of days during which he was in drill pay status and for periods of active duty training by submitting a statement providing the necessary information; and that his VA compensation payments might be discontinued if no answer was received. The Veteran did not respond to the August 5, 1971, notification letter. Based on the Veteran’s lack of response to the August 5, 1971 letter, his benefits were suspended beginning October 1, 1971. There was no further contact from the Veteran regarding his compensation until he filed a claim for an increased rating that was received October 31, 2008. The June 2009 rating decision that is the subject of this appeal continued the 10 percent rating assigned. In the July 2009 notice letter, the Veteran was informed that although his service-connected right hand disability continued, he was still not being paid because his benefits were previously suspended and that he would be notified at a future date if he was entitled to retroactive payment. The Veteran subsequently submitted a VA Form 21-4138 received on May 3, 2010, which indicated he had received drill pay from January 1, 1971 until August 21, 1971. Compensation benefits resumed June 1, 2010, the first day of the month following receipt of the needed documentation. The Veteran again filed a notice of disagreement, indicating he had not received the letter sent in the 1970s and that is why he did not respond. Compensation benefits were subsequently restored effective October 31, 2008, the date on which his claim for increased rating had been received. See December 2010 letter. The Veteran continues to seek back pay for the years his compensation payment was suspended. The Board notes that there is no indication that the Veteran did not receive the August 5, 1971 letter, and that the address to which it was sent was the same address listed on the Veteran’s DD Form 214, his original VA Form 21-526 received in September 1970, and a form related to the Veteran’s VA education benefits he submitted in August 1979. An appellant's statement of nonreceipt, without more, is not clear evidence that can be used to rebut the presumption of regularity. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (“The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary.”). The VA Form 21-4138 received May 3, 2010 constituted his election to receive VA benefits. See 38 C.F.R. §§ 3.700. While it was submitted within a year of the June 2009 rating decision from which this appeal stems, it was not submitted timely as to the June 1971 rating decision and there is no evidence he elected to receive VA compensation rather than military drill pay prior to when the VA Form 21-4138 was received in May 2010. In this case, 38 C.F.R. § 3.400 (j) is the controlling regulatory provision as to the effective date of the disputed compensation award from the June 2009 decision. The earliest effective date under this law is June 1, 2010. REASONS FOR REMAND 1. Service connection for a bilateral eye disorder is remanded. Although the June 2009 rating decision treated the claim for service connection for a bilateral eye disorder as an original claim rather than as one to reopen and denied it on the merits, the RO denied the claim on the basis that VA records did not show symptomatology or treatment for a bilateral eye condition. The January 2011 statement of the case and the January 2018 supplemental statement of the case both declined to reopen the claim. Given the fact that the VA records dated after the June 2009 rating decision contain several diagnosed bilateral eye disorders, readjudication of the claim is needed. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that a VA examination would be beneficial in deciding this claim. Updated VA treatment records should also be obtained. 2. Service connection for bilateral hearing loss is remanded. A VA audiological examination was conducted in July 2016. The Veteran only exhibited hearing loss per VA standards 38 C.F.R. § 3.385 in his left ear at that time, although there is some indication of right ear hearing loss in VA records dated during the claim. In addition, the VA examiner’s opinion was in part based on the absence of audiometric evaluations during service. Service treatment records, however, provide audiometric testing results conducted in September 1967, September 1968 and August 1970. An additional examination and addendum opinion are needed. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his eyes and hearing loss. After securing the necessary release, request any relevant records identified. In addition, obtain relevant VA treatment records. If any requested records are not available, the Veteran should be notified of such. 2. After records development is completed, the Veteran should be afforded a VA eye examination to determine the nature of the claimed bilateral eye disability and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability of the eyes arose during service or is otherwise related to service. A rationale for all opinions expressed should be provided. 3. Schedule the Veteran for a VA hearing loss examination. Following examination of the Veteran and review of the claims file, the examiner is asked to indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hearing loss is related to service. The examiner should explain why or why not, to include explaining why the Veteran’s hearing loss is/is not a delayed response to in-service noise exposure. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel