Citation Nr: 1807872	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  15-00 458	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for the residuals of an in-service left eye injury, and if so, whether service connection is warranted. 

2.  Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 

3.  Entitlement to a rating in excess of 30 percent for a headache disability.

4.  Entitlement to a rating in excess of 60 percent for bilateral hearing loss. 

5.  Entitlement to compensation under 38 U.S.C. § 1151 for a left eye injury status-post left eye cataract surgery.


REPRESENTATION

Veteran represented by:	The American Legion
ATTORNEY FOR THE BOARD

J.L. Ivey, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1960 to July 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

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).

The issues of Entitlement to service connection for PTSD, entitlement to higher ratings for a headache disability and bilateral hearing loss, and entitlement to compensation under 38 U.S.C. § 1151 for a left eye injury are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An August 2006 rating decision denied entitlement to service connection for a left eye disability claimed as due to an in-service injury; the Veteran was properly notified of the adverse outcome in a September 2006 letter; he initiated but did not perfect an appeal of that decision, and new and material evidence was not received within the remainder of the appeal period.
 
2.  The additional evidence received since the appeal period associated with the August 2006 rating decision closed is cumulative or redundant, and does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for the residuals of an in-service left eye injury. 


CONCLUSIONS OF LAW

1.  The August 2006 rating decision denying service connection for the residuals of an in-service left eye injury is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
 
2.  The criteria to reopen the claim of service connection for the residuals of an in-service left eye injury are not met.  38 U.S.C. § 5108 (2012); 38 C.F.R. 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

Generally, a claim which has been finally denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  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.  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). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

In June 2006, the Veteran filed a claim seeking service connection for the residuals of an in-service left eye injury, also claimed as loss of sight.  In an August 2006 rating decision, the RO denied the claim, noting that service treatment records (STRs) did not show any treatment for a left eye injury and the separation examination showed a normal eye examination of the eyes and 20/20 vision in both eyes.  The Veteran initiated an appeal of that decision, and a Statement of the Case was issued in April 2008.  However, he did not perfect his appeal with a timely VA Form 9, nor was new and material evidence received within the remainder of the appeal period.  Thus the decision became final.  38 U.S.C. § 7105(d); 38 C.F.R. §§ 3.156 (c)(3), 20.1103 ("A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as described in Rule 302 (§ 20.302 of this part)").  Evidence considered in the SOC included statements from the Veteran regarding the alleged in-service dirt-related injury.  

Evidence received in connection with the Veteran's November 2011 claim to reopen his residuals of an in-service left eye injury includes numerous lay statements regarding the alleged in-service dirt-related injury and ongoing treatment for eye conditions that were previously diagnosed and discussed in connection with the prior denial.  The Veteran's lay statements regarding the injury are substantively duplicative of statements considered in connection with the prior denial.  As such, they are not "new" in accordance with VA regulations.  The VA treatment notes showing ongoing treatment are new in that they were not extant at the time of the prior denial; however, they are not material because they do not relate to an unestablished fact necessary to substantiate the claim.  

As such, the Board finds new and material evidence has not been received, and thus reopening his claim for the residuals of an in-service eye injury is not warranted. 



ORDER

The petition to reopen the claim of entitlement to service connection for the residuals of an in-service left eye injury based on the submission of new and material evidence is denied.


REMAND

Bilateral Hearing Loss & Headaches

The Veteran's representative asserts that the Veteran's bilateral hearing loss and headache disabilities have worsened since the prior VA examinations, which occurred in August 2013.  As such, he must be afforded new examinations for these disabilities.   Updated VA treatment notes should also be obtained on remand. 

§ 1151 Claim for Left Eye

The Veteran asserts that his left eye iris was torn as a result of a cataract surgery that took place at a VA facility in October 2006.  The consent form regarding the procedure, with the Veteran's signature, is not of record.  This record and any other records regarding the procedure (to include nurse's notes and a detailed operation report, if extant) must be obtained on remand.  

PTSD

The Veteran asserts that he has PTSD due to a traumatic event that occurred while he was stationed in Germany.  Specifically, he asserts that someone's parachute did not open during a training exercise and the soldier died as a result.  See October 2010 stressor statement and statement received December 2013.  Although the AOJ and the JSRRC coordinator have previously determined that the Veteran provided insufficient details to corroborate his claimed stressor (see, e.g., the Formal Findings of a Lack of Information to Corroborate Stressors dated May 2011 and August 2011), an appropriate inquiry should be pursued in order to develop the Veteran's claimed in-service stressor by 90 day increments, for the entire period the Veteran was stationed in Germany, if necessary.  See Gagne v. McDonald, 27 Vet. App. 397 (2015) (VA's duty to assist is not bound by the Joint Services Records Research Center (JSRRC)'s 60-day limitation for stressor verification requests, and the fact that multiple records searches would burden JSRRC employees does not mean that those efforts would be "futile.").

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 any missing VA treatment notes and associate them with the claims file.

2.  Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral hearing loss disability.  The examiner must ask the Veteran about and discuss any functional impairment due to hearing loss. 

3.  Schedule the Veteran for a VA examination to determine the current nature and severity of his headache disability. 

4.  Obtain the consent form (signed by the Veteran) for the Veteran's October 2006 left eye cataract surgery along with any other records regarding the procedure (such as nurse's notes and a detailed operation report, if extant) and associate such records with the claims file. 

5.  After attempting to obtain additional details from the Veteran, attempt to verify his alleged stressor of: a parachuting accident occurring while he was stationed in Germany.  Associate all obtained evidence with the claims file, including any negative responses and documentation of all efforts to complete the research.  If necessary, make numerous inquiries in 90-day increments for the entire period the Veteran was stationed in Germany.

6.  After completing the above development and any other additional development deemed appropriate, readjudicate the appeal.  If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case and given the opportunity to respond.  Thereafter, the case should then be returned to the Board for further appellate consideration, if otherwise in order. 

The Veteran has the right to submit additional evidence and argument on the 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).




______________________________________________
H.M. WALKER
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs