Citation Nr: 19190817 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 17-34 325 DATE: December 3, 2019 ORDER New and material evidence having been presented, the appeal to reopen the claim for service connection for an eye condition, claimed as blindness, is granted. REMANDED Entitlement to service connection for an eye condition, to include age-related macular degeneration and glaucoma, to include as secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment is remanded. FINDINGS OF FACT 1. An unappealed July 2012 rating decision denied a claim to reopen a claim for service connection for an eye condition, claimed as blindness secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment; new and material evidence was not received within one year of that decision. 2. Evidence received since the July 2012 rating decision is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim for service connection for an eye condition, to include age-related macular degeneration and glaucoma, to include as secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment. CONCLUSIONS OF LAW 1. The July 2012 rating decision that denied reopening a claim for service connection for an eye condition, claimed as blindness secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 2. New and material evidence has been received to warrant reopening the claim for service connection for an eye condition, claimed as blindness secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from January 1966 to November 1969, including service in Vietnam from March to July 1967. For his meritorious service, the Veteran was awarded the National Defense Service Medal, the Vietnam Service Medal with (4) Bronze Stars, the Vietnam Campaign Medal with “60” Device, and the Combat Action Ribbon. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The RO reopened the claim in a May 2017 statement of the case (SOC). Despite the RO’s decision to reopen this claim, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. 1. Whether new and material evidence has been received to reopen the claim for service connection for an eye condition, claimed as blindness secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran’s claim for service connection for an eye condition, claimed as blindness secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment was originally denied in an August 2003 rating decision based essentially on the finding that the medical evidence of record did not demonstrate that the Veteran’s eye disability was secondary to his service-connected non-Hodgkin’s lymphoma or military service. At that time, the medical evidence included diagnoses of macular degeneration and glaucoma. The Veteran’s claim to reopen was subsequently denied in a February 2006 rating decision and again in July 2012. The Veteran did not appeal the July 2012 decision or submit new and material evidence within one year of notice of that decision; therefore, it is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a), (b). The evidence received since the July 2012 rating decision includes a March 2014 VA treatment record which noted “rec[ie]ved massive chemo one of the side effects was an eye problems [sic] 1999.” The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim of service connection and is sufficient to reopen the claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for an eye condition, claimed as blindness secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment, is reopened. REASONS FOR REMAND 2. Entitlement to service connection for an eye condition, to include age-related macular degeneration and glaucoma, to include as secondary to service-connected non-Hodgkin’s lymphoma including chemotherapy treatment is remanded. The Veteran asserts that his eye condition is secondary to his service-connected non-Hodgkin’s lymphoma including chemotherapy treatment. The Veteran received chemotherapy and radiation treatment for non-Hodgkin’s lymphoma in 1996 and 1998 and a bone marrow transplant in 1999. Immediately following his treatments, the Veteran asserted that his vision deteriorated. He was diagnosed with macular degeneration and glaucoma in the early 2000s. See 2002 Correspondence and November 2019 Appellate Brief. In January 2006, the Veteran had a VA examination. The VA examiner reported that the Veteran had macular degeneration in both eyes. He stated that he could not resolve the issue without resort to mere speculation, and he could not attribute the macular degeneration to the bone marrow transplant. The VA examiner concluded that the macular degeneration could represent an independent process separate from the fact that the Veteran underwent the bone marrow transplant. In May 2017, the Veteran was afforded a VA examination for his eye condition. The VA examiner opined that it was less likely than not that the Veteran’s macular degeneration was proximately due to chemotherapy treatment. The VA examiner explained that the Veteran suffered from age-related macular degeneration that affects individuals with a genetic predisposition. The condition was advanced in both eyes. It caused progressive vision loss due to deposits and fluid leakage in the retina. With respect to glaucoma, the VA examiner opined that he was “unable to discern whether the condition was influenced by chemotherapy treatment without resorting to conjecture.” The VA examiner also noted that the Veteran had pigmentary glaucoma in which the pigment released from the posterior part of the iris obstructs the aqueous outflow of the eye, leading to elevated eye pressure and optic nerve or vision changes. It was suggested that the Veteran’s condition was a genetic component to inheritance. The examiner noted that the Veteran had a history of 1998 non-Hodgkin’s lymphoma, treatment with chemotherapy, and bone marrow transplant in 1999. The examiner noted that the Veteran was diagnosed with macular degeneration and glaucoma with Dr. S. in 2002 and that macular degeneration was treated between 2002 and 2003. The examiner noted that the condition typically arises in the 4th to 5th decade of life. The examiner also noted that there were few reports of glaucoma associated with some chemotherapy medications. Further, the VA examiner explained that there was no evidence in the record indicating a baseline level of severity for the Veteran’s eye conditions prior to or throughout chemotherapy treatment in 1996 to 2000. Medical treatment records from Dr. S.’s office also showed macular degeneration OD>OS in 2000, where the Veteran was treated with photodynamic therapy. The records showed a slow decrease in vision OS as well through 2000-2002. The VA examiner reported that Dr. S.’s notes indicated glaucoma. The Veteran first presented at the VA in 2002 with advanced macular degeneration and glaucoma. The VA examiner stated that there was no literature regarding chemotherapy and macular degeneration, which was less likely than not aggravated by chemotherapy. He could not determine aggravation of glaucoma without resorting to speculation or conjecture. The Board finds that further medical opinion is needed as neither the January 2006 nor the May 2017 VA examinations discussed the articles the Veteran submitted regarding how cancer treatment has an effect on ocular conditions. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment or private treatment records and associate with the claims file. 2. After the above development has been completed, obtain a VA addendum medical opinion regarding the nature and etiology of the Veteran’s age-related macular degeneration and glaucoma. The Veteran’s claims file, including a copy of this remand, must be provided to the examiner prior to the examination. The examiner should address the following: (a.) Whether it is at least as likely as not (50% probability or greater) that the Veteran’s age-related (i) macular degeneration and/or (ii) glaucoma, is proximately due to or caused by his service-connected non-Hodgkin’s lymphoma including chemotherapy treatment? In rendering his opinions, the clinician should consider and discuss as necessary the medical articles submitted by the Veteran in October 2015 and June 2017 that discuss the relationship between chemotherapy treatment and ocular conditions. See October 2017 Correspondence and October 2015 Share Print Screens. Also, the VA examiner should consider the March 2014 VA treatment record in which it was noted that the Veteran received massive chemotherapy for which one of the side effects was eye problems. (b.) Whether it is at least as likely as not that the Veteran’s eye conditions, to include (i) age-related macular degeneration and (ii) glaucoma, is aggravated by his service-connected non-Hodgkin’s lymphoma including chemotherapy treatment? (c.) Whether it is at least as likely as not that the Veteran’s eye conditions, to include age-related macular degeneration and glaucoma, are related to his military service, to include defective vision notated in service? All opinions must be accompanied by an explanation. The examiner should not base his negative opinion on the absence of evidence. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional   information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large. M. C. Graham Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.