Citation Nr: 18160937 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 09-02 575 DATE: December 28, 2018 REMANDED Entitlement to service connection for a right eye impairment is remanded. Entitlement to service connection for degenerative disc disease of the cervical spine is remanded. Entitlement to service connection for lumbar spine spondylosis, status post surgeries, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to February 1968. The Board notes that the Veteran has contested the dates of his active duty service; however, these dates are reflected on his Certificate of Discharge (DD-214) and were confirmed by the Army Board for Correction of Military Records. See February 2017 Certificate of Discharge, p. 2; February 2017 Third Party Correspondence, pp. 5-11. He received the National Defense Service Medal and Good Conduct Medal. In March 2016, the Board of Veterans’ Appeals (Board) denied the claims for service connection for a right eye disorder, a lumbar spine disorder, and a cervical spine disorder. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Memorandum Decision, the Court vacated the Board’s decision and remanded the claim to the Board for readjudication consistent with the Court’s instructions. At issue in the present case is the validity of a March 2009 rating decision granting service connection for a right eye impairment. By way of procedural background, the Veteran filed a claim for service connection for a right eye condition in October 2008. He subsequently underwent a VA examination in December 2008. In March 2009, the Regional Office (RO) produced a rating decision granting service connection for right eye legal blindness, evaluated as 30 percent disabling, and special monthly compensation based on loss of use of an eye, both effective October 2008. Before the Veteran was notified of the March 2009 rating decision, the RO produced an April 2009 deferred rating decision which requested an expedited medical opinion. In April 2009, a VA clinician opined that she could not determine whether the Veteran’s right eye blindness was caused by his service without resorting to mere speculation. On May 15, 2009, the RO produced and notified the Veteran of a rating decision denying service connection for a right eye impairment. The Veteran timely disagreed with the May 2009 rating decision and the RO issued a statement of the case in March 2010. In May 2010, the Veteran perfected his appeal. In response to a Privacy Act/Freedom of Information Act (FOIA) request, a Board FOIA officer sent the Veteran a complete copy of his claims file in October 2012. In August 2013, the Veteran requested benefits for right eye impairment based on the March 2009 rating decision. The Veteran was subsequently informed that the March 2009 decision was in error, was never finalized and the May 2009 denial of service connection for a right eye impairment was currently on appeal. In a February 2014 correspondence, the Veteran stated that he had no knowledge of the March 2009 rating decision until he saw a copy in claims file in October 2012. He further requested clarification on which rating decision was correct (March 2009 or May 2009) in July 2014. The RO issued a supplemental statement of the case in November 2014 in which it noted that the March 2009 rating decision was a draft, was in error, and was never finalized. In Sellers v. Shinseki, 25 Vet. App. 265 (2012), the Court discussed the circumstances in which a rating decision becomes final and binding. The Court emphasized that in order for a rating decision to be effective, the RO must provide the claimant with notice of the decision in accordance with 38 U.S.C. § 5104(a) and 38 C.F.R. §§ 3.103(b)(1) and (f). Section 5104(a) requires VA to provide a claimant with timely notice of a rating decision and an explanation of his appellate rights. Section 3.103(b)(1) and (f) sets forth the following content requirements for notice of a rating decision: “the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph (c) of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals).” Section 3.104(a) establishes that a rating decision will be final and binding “at the time VA issues written notification in accordance with 38 U.S.C. 5104.” Here, the question is whether the Veteran’s actual receipt of the March 2009 rating decision rendered the decision binding on VA. The Board finds that it does not. The Veteran relied on Sellers in his brief to the Court in support of his appeal of the Board’s March 2016 decision. In Sellers, the Veteran established possession of both the rating decision and a notification letter. The Court determined that the rating decision at issue was effective and binding on VA by virtue of the Veteran’s receipt of both the decision and notice of the decision. Sellers, 25 Vet. App. at 277. The Court ultimately concluded that the “draft decision” was binding on VA because the Veteran actually received notice of the decision—even if it was not “in the regular course of business.” Id. at 276-277 (finding that the “caselaw makes clear that defects of decisional notice are cured when the record demonstrates that the claimant and his representative actually received notice of the decision” (citing Clark v. Principi, 15 Vet. App. 61, 62-64 (2001) and Hauck v. Brown, 6 Vet. App. 518, 519 (1994))). Both the rating decision at issue and notice of that decision complied with sections 5014(a) and 3.103(b)(1) and (f). See Sellers, 25 Vet. App. at 275-277. In short, the Court concluded that “where a claimant demonstrates actual receipt of an RO decision and notice from either the RO or his representative, there is no question whether such notice is effective and binding on VA pursuant to section 5104(a) and § 3.104(a).” Id. at 277. In the present case, the Veteran learned of the existence of the March 2009 rating decision through his own review of the claims file following a FOIA request. As in Sellers, the Veteran has demonstrated actual receipt of the March 2009 rating decision. The rating decision contains the reasons for the decision and the effective date. See 38 C.F.R. § 3.103(b)(1), (f). However, this case is distinct from Sellers in that the Veteran has not shown, nor does he contend, that he received notice of the decision informing him of his appellate rights. See 38 U.S.C. § 5104(a); 38 C.F.R. § 3.103(b)(1), (f). As was the case in Sellers, such requisite notice is usually provided in a notification letter which accompanies a rating decision as an attachment thereto. In the current case, the Board finds that no such notification was received by the Veteran. Therefore, this leads the Board to conclude that the March 2009 decision was not final and is not binding on VA. See Cornell v. McDonald, 28 Vet. App. 297, 303 (2016) (stating that “the Board is unable to act on a matter absent an appealable, binding RO decision” and in order for the RO decision to be effective proper notice is required). Service Connection for Right Eye Impairment There are several right eye diagnoses of record including reduced visual acuity/blindness, exotropia, presbyopia, macular scarring, optic nerve head pallor/atrophy, and cataracts. See December 2008 VA Examination, p. 2. The April 2009 examiner concluded that she was unable to resolve the issue of whether the Veteran’s right eye blindness, optic nerve head pallor/atrophy and macular scarring were etiologically related to the Veteran’s active duty service. However, she did not consider the Veteran’s diagnosis of cataracts. On remand, the RO should obtain an opinion that fully considers and addresses all of the Veteran’s right eye diagnoses. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Service Connection for Degenerative Disc Disease of the Cervical Spine and Service Connection for Lumbar Spine Spondylosis, Status Post Surgeries The Veteran has presented evidence of cervical spine and lumbar spine disabilities. See February 2017 Private Treatment Records, pp. 2, 4. The Veteran contends that his current spine disabilities are the result of a football injury sustained during his active duty service. See September 2008 NOD, p. 1. On remand, the Veteran should be afforded a VA examination in order to ascertain whether his current cervical and lumbar spine disabilities are etiologically related to his in-service football injury. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain a VA opinion that addresses the nature and etiology of the Veteran’s right eye impairment. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide the opinion, and the examination report must include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that addresses the following: (a) Clarify which of the Veteran’s right eye diagnoses are refractive errors and which of his diagnoses are not. Diagnoses of record include reduced visual acuity/blindness, exotropia, presbyopia, macular scarring, optic nerve head pallor/atrophy, and cataracts. (b) For any right eye diagnoses that are classified as refractive errors, is it at least as likely as not (a 50 percent probability or greater) that the disability suffered a superimposed injury or disease during the Veteran’s active duty service? (c) For any right eye diagnoses that are not classified as refractive errors, is it at least as likely as not (a 50 percent probability or greater) that the disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of the Veteran’s current cervical spine and lumbar spine disabilities. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale for the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current degenerative disc disease of the cervical spine was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In providing this response, the examiner must address the Veteran’s report that he injured his back while playing football on active duty. See September 2008 NOD, p. 1. (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current lumbar spine spondylosis, status post surgeries, was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? In providing this response, the examiner must address the Veteran’s report that he injured his back while playing football on active duty and the June 2009 note from the Veteran’s diabetes clinician which indicated that the Veteran’s degenerative disease could be related to trauma from a football injury. See September 2008 NOD, p. 1; August 2009 Third Party Correspondence, p. 1. (Continued on the next page)   The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel