Citation Nr: 20008207 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-43 450 DATE: January 30, 2020 ORDER The appeal to reopen a claim for service connection for amblyopia with exotropia of the right eye is denied. The appeal to reopen a claim for service connection for residuals of a facial laceration is granted. REMANDED Entitlement to a compensable rating for residuals of fractured right hand 3rd and 4th fingers is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for residuals of a facial laceration is remanded. Entitlement to an earlier effective date than April 30, 2012, for the increased rating to 30 percent for migraines/headaches is remanded. FINDINGS OF FACT 1. In an unappealed January 1984 rating decision, the Veteran was denied service connection for amblyopia with exotropia of the right eye. 2. The evidence associated with the claims file subsequent to the January 1984 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for amblyopia with exotropia of the right eye, is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim. 3. In an unappealed January 1983 rating decision, the Veteran was denied service connection for residuals of a facial laceration. 4. The evidence associated with the claims file subsequent to the January 1983 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of a facial laceration, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen a claim of entitlement to service connection for amblyopia with exotropia of the right eye. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a facial laceration. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from April 1979 to April 1982. The Board notes the Veteran’s previous requests for a Board hearing regarding the issues on appeal. A hearing was scheduled for September 16, 2019. However, in a September 16, 2019, statement from his attorney, the Veteran canceled his request for a hearing. There are no additional requests for a hearing of record. As such, the Board considers the Veteran’s request for a hearing satisfied. See 38 C.F.R. §§ 20.702(e), 20.704(e) (2018). The Board also acknowledges that the September 2019 correspondence requested that the record be left open for 60 days to allow the Veteran to submit additional evidence. The Veteran was sent a correspondence on September 24, 2019, informing him that the 60-day extension had been granted. However, as of the date of this decision, no additional evidence has been submitted by the Veteran or his attorney. Nor are there any additional extension requests of record regarding the issues on appeal. Additionally, the Board notes its September 2017 remand for the issuance of a Statement of the Case (SOC) for the issues of an earlier effective date for the grant of service connection for bilateral hearing loss and tinnitus. The Board now notes that the record may have been incomplete at the time of the previous remand. The record reflects a July 2016 SOC, which addresses the issues of an earlier effective date for the grant of service connection for bilateral hearing loss and tinnitus. The Veteran also timely appealed this SOC in an August 2016 Form 9, and he did not include the issues of earlier effective dates for the grant of service connection for bilateral hearing loss and tinnitus. Following the September 2017 remand, an additional SOC was provided in November 2017 for the issues of an earlier effective date for the grant of service connection for bilateral hearing loss and tinnitus. The Veteran did not submit a substantive appeal in response to this SOC. As such, those issues are not on appeal. The Board also notes a September 2015 notice of disagreement regarding the issue of a higher rating for service-connected headaches. A March 2014 rating decision increased the Veteran’s rating for headaches to 30 percent effective April 30, 2012. In April 2014, the Veteran’s attorney at that time submitted a notice of disagreement that indicated disagreement with “all issues decided” in the March 2014 rating decision. In a September 2015 rating decision, the Regional Office then continued the 30 percent rating for headaches. In a September 2015 notice of disagreement, the Veteran’s attorney asserts that VA erred in issuing the September 2015 rating decision. Specifically, the attorney asserted that because a timely notice of disagreement was submitted regarding the March 2014 rating decision, it was error for VA to issue the September 2015 rating decision. The attorney cited 38 C.F.R. § 19.29 indicating that upon the submission of a timely notice of disagreement, VA will either grant the benefit or prepare a Statement of the Case. The attorney then asserted that because the September 2015 rating decision denied a higher rating or earlier effective date for headaches, the decision has no force or effect. The Board explains that a July 2016 SOC included the issue of an increased rating in excess of 30 percent for headaches. As such, the error of not issuing a SOC as to that matter was corrected. Additionally, the Veteran appealed the July 2016 SOC in an August 2019 Form 9, and he did not include the issue of an increased rating for headaches. As such, that issue has not been properly appealed and is not before the Board. However, the Board finds that remand is necessary regarding the claim for an earlier effective date for the increased rating for headaches, which the Board will discuss in the remand portion of this decision. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. Similarly, a decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. The appeal to reopen a claim for service connection for amblyopia with exotropia of the right eye The Veteran was originally denied service connection for a right eye condition, amblyopia with extropia, in a January 1984 rating decision. In this decision, the Regional Office determined that the condition existed prior to the Veteran’s service and was not aggravated during service. The rating decision was not appealed, nor new and material evidence submitted, within a year. As such, the January 1984 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In March 2012, the Veteran filed another claim for service connection for amblyopia with extropia of the right eye. The claim was denied in a March 2014 rating decision, which the Veteran timely appealed. Thus, the January 1984 rating decision is the last prior final decision relating to the issue of service connection for amblyopia with extropia of the right eye. New treatment records pertaining to a right eye condition have been associated with the record since 1984. Yet, while new, the evidence is not also material. At the time of the January 1984 rating decision, a current diagnosis was already established. As such, any evidence speaking to a diagnosis is cumulative of evidence previously of record at the time of the prior denial. Instead, the matter at issue in the prior final decision was whether the condition, which existed prior to service, had been aggravated during service. To this point, the Board notes that where a condition existed prior to service, service connection may not be established based only on an in-service incurrence. Instead, service connection is warranted if the condition underwent an increase in service and was aggravated beyond its natural progression. See 38 U.S.C. § 1153. Since the January 1984 rating decision, there has been no evidence associated with the record that speaks to whether the Veteran’s right eye condition increased during service or was aggravated during service. There are no medical or treatment reports to this effect. Nor are there any assertions from the Veteran or buddy statements addressing the matter. As such, there is no new evidence that speaks to a previously unestablished fact and has a reasonable possibility of substantiating the claim. Lacking such evidence, while the threshold for reopening is low, it has not been met with regard to the claim for a right eye condition. Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010). Accordingly, the claim of entitlement to service connection for amblyopia with extropia of the right eye is not reopened. 38 C.F.R. § 3.156(a). 2. The appeal to reopen a claim for service connection for residuals of a facial laceration The Veteran was originally denied service connection for residuals of a facial laceration in a January 1983 rating decision. In this decision, the Regional Office determined that there was no current indication of residuals of a facial laceration. The rating decision was not appealed, nor new and material evidence submitted, within a year. As such, the January 1983 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In March 2012, the Veteran filed another claim for service connection for residuals of a facial laceration. The claim was denied in a March 2014 rating decision, which the Veteran timely appealed. Since the last prior final decision, the January 1983 rating decision, treatment notes associated with the file indicate that the Veteran has scars. While the notes do not specify facial scars, they also do not exclude facial scars. Additionally, a November 2013 treatment note from Northport VA Medical Center states that the Veteran has “erytmema of the face.” Independent research defines erytmema as superficial reddening of the skin, usually in patches, as a result of injury or irritation causing dilatation of the blood capillaries. The evidence of erytmema is new as it was not previously of record at the time of the prior final denial. Nor is the evidence cumulative or redundant of evidence previously of record at the time of the prior final denial. The evidence also speaks to a previously unestablished fact. The claim was denied for lack of a current residual (diagnosis). The Board notes that the Veteran links his facial laceration to an in-service fall, which he asserts resulted in facial injury. As the noted skin condition may be linked, by definition, to injury, the Board finds the condition sufficient to suggest a current residual of a facial injury/laceration. Moreover, the Board notes that the threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. at 110, 117-118. Accordingly, the claim of entitlement to service connection for residuals of a facial laceration is reopened. 38 C.F.R. § 3.156(a). The Board notes that the appeal is granted to this extent only. The claim for service connection for residuals of a facial laceration is being remanded and will be discussed in the remand portion of this decision. REASONS FOR REMAND 1. Entitlement to a compensable rating for residuals of fractured right hand 3rd and 4th fingers is remanded. The Board finds that remand is necessary to obtain a more up-to-date assessment of the Veteran’s disability picture for his right hand. The record reflects that the Veteran last underwent a VA hand/fingers examination in 2015. As he seeks an increase and his last exam took place almost five years ago, the Board finds the previous exam stale. As such, it necessary to reevaluate the current severity and manifestations of his disability. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). Accordingly, on remand, the Veteran should be scheduled for a new VA hand examination. 2. Entitlement to service connection for a neck condition is remanded. Remand is necessary to obtain an adequate opinion regarding the Veteran’s neck condition. The Veteran last underwent a VA neck examination in July 2016, and the examiner provided a diagnosis for degenerative disease of the neck. The examiner also opined that it is less likely than not that the condition is related to the Veteran’s service. The examiner reasoned that, “I am not aware of general medical consensus nor of any medical literature that would provide scientific evidence to support the claim that cervical spine disc disease C4/C5 and C5/C6 on MRI dated [September 15, 2015] is caused by or result of cervical adenopathy.” However, this opinion is not adequate. Initially, the Board notes that the examiner only addressed whether the Veteran’s cervical arthritis is due to cervical adenopathy. This rationale does not fully address whether the condition is due to his service. Additionally, the examiner did not address the Veteran’s lay assertions. The Veteran has indicated that his neck pain is related to an in-service fall that occurred in 1979. The Board also notes that the Veteran is currently service connected for a traumatic brain injury (TBI) associated with this in-service fall, and those reports indicate that he fell down 21 stairs. See July 2016 TBI VA Exam Report. The Board finds it logically possible that a fall down 21 stairs could result in residual neck issues. As such, this injury, and any additional lay assertions from the Veteran regarding his neck issues, must be specifically addressed on remand. Accordingly, an addendum opinion is necessary as to whether the Veteran’s neck condition is related to his active service, to include the 1979 in-service fall down a flight of stairs. 3. Entitlement to service connection for erectile dysfunction is remanded. Remand is necessary to obtain an adequate opinion regarding the Veteran’s erectile dysfunction. A July 2016 VA exam indicates a diagnosis for erectile dysfunction. The examiner also opined that it is less likely than not that the Veteran’s erectile dysfunction was caused by his back condition. The examiner reasoned that, “The Veteran’s erectile dysfunction and trouble urinating and incontinence are caused by his severe peripheral vascular disease and his benign prostate hypertrophy. There is an MRI of the lumbar spine dated January 2015 showing no evidence of neural compression.” However, this opinion only addresses causation. The Board emphasizes that the theory of secondary service connection also refers to aggravation. See 38 C.F.R. § 3.310. As such, an opinion is necessary to address whether the Veteran’s erectile dysfunction has been aggravated by his service-connected back disability. With regard to aggravation, the Board notes that per a recent decision from the Court of Appeals for Veterans Claims, “any incremental increase in disability—any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions…regardless of its permanence” constitutes aggravation. Ward v. Wilkie (16-2157, 17-1204). As such, the examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. 4. Entitlement to service connection for residuals of a facial laceration is remanded. Having reopened the claim for service connection for residuals of a facial laceration, remand is necessary to afford the Veteran a VA examination and seek a medical opinion regarding the etiology of any current residuals. As noted, the record suggests that the Veteran has residuals of an injury to his face. He has also linked the injury and laceration to the in-service fall that took place in 1979. As noted, he fell down a flight of stairs. As such, the record is also sufficient to suggest an association between any current residuals and the Veteran’s service. Yet, lacking a medical opinion, the record is not sufficient to decide the claim. As such, the Board finds that VA’s duty to assist has been triggered, and the Veteran should be afforded a VA examination for the claimed condition. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. Entitlement to an earlier effective date than April 30, 2012, for the grant of an increased rating to 30 percent for migraines/headaches. As noted in the Introduction, a September 2015 notice of disagreement indicates, essentially, that the issue of an earlier effective date for the increased rating for headaches remains pending. As noted, a March 2014 rating decision granted the Veteran an increased rating to 30 percent for headaches, effective April 30, 2012. The Board notes that neither the Veteran, nor his attorney, explicitly sought an earlier effective date for the grant of the increased rating within a year of the March 2014 rating decision. However, as noted in the September 2015 notice of disagreement, the April 2014 notice of disagreement disagreed with “all issues decided” in the March 2014 rating decision. The Board notes that prior to March 24, 2015, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Thus, as the April 2014 notice of disagreement generally disagreed with the March 2014 rating decision, which assigned an effective date for the increased rating, the Board finds that April 2014 notice of disagreement may reasonably be construed to refer to the effective date assigned in the appealed rating decision. Thus, as a timely notice of disagreement was filed with regard to the assigned effective date for the increased rating, remand is necessary for the issuance of a SOC regarding the matter. See Manlincon v. West, 12 Vet. App. 238 (1999) (where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any relevant and outstanding VA treatment records pertaining to the Veteran’s service-connected right-hand disability. Additionally, have the Veteran identify any private records regarding this disability. For any private records identified, seek authorization from the Veteran to obtain these records. Then, make the appropriate (2) attempts to obtain those records. If efforts to obtain the records are unsuccessful, the Agency of Original Jurisdiction should inform the Veteran and his representative of such and request that they submit the outstanding evidence. 2. After obtaining any additional records, schedule the Veteran for a VA examination with an appropriate examiner to ascertain the current severity and manifestations of his service-connected right-hand disability. The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished. The examiner should review all pertinent records associated with the claims file and any assertions made by the Veteran regarding his symptoms. The examiner is advised that the Veteran is competent to attest to observable symptoms, such as pain. The examiner must provide all information required for rating purposes. 3. For each claim remanded for an addendum opinion or VA examination, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. Any opinion provided must consider the Veteran’s and any other competent lay statements and be accompanied by a rationale 4. Return the claims file, to include a copy of this remand, to the July 2016 VA examiner who addressed the etiology of the Veteran’s neck condition. The examiner is asked to provide an addendum opinion. If the examiner is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Neck Disability: the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current neck condition was incurred during, caused by or is otherwise related to his active service. Importantly, the examiner must address the Veteran’s lay assertions, to include his statements that his neck pain is related to an in-service fall down a flight of stairs. The examiner is advised that the occurrence of this event is verified in the Veteran’s service treatment records and current treatment notes, to include currently service-connected disabilities. 4. Return the claims file, to include a copy of this remand, to the July 2016 VA examiner who addressed the etiology of the Veteran’s erectile dysfunction. The examiner is asked to provide an addendum opinion. If the examiner is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Erectile Dysfunction: the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected back condition. 5. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of any current residuals of a facial laceration. i) Initially, the examiner is asked to indicate whether the Veteran currently has any symptoms (to include scars, redness, patches, etc.) that may be linked to/suggestive of a previous facial laceration. iii) The examiner is then asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such impairment to the face was incurred during, caused by or is otherwise related to his active service, to include his in-service fall down a flight stairs. 6. After completing the above actions, readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.