Citation Nr: 20009764 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-29 961 DATE: February 6, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for transient vision loss and retrobulbar polyps is granted. Service connection for epiphora (excessive tearing) of the left eye is granted. REMANDED Entitlement to service connection for subjective transient vision loss is remanded. Entitlement to service connection for a disability manifesting as fatigue is remanded. Entitlement to a higher rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A November 2013 rating decision denied service connection for transient vision loss and retrobulbar polyps; the Veteran did not appeal, and VA did not receive new and material evidence within one year after notice of the decision. 2. Since the last final denial, VA has received new and material evidence to reopen the previously denied claim. 3. The Veteran’s epiphora of the left eye is secondary to his service-connected left eyelid disability. CONCLUSIONS OF LAW 1. The November 2013 denied of service connection for transient vision loss and retrobulbar polyps became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104. 2. New and material evidence has been received to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for epiphora of the left eye, as secondary to service-connected left eyelid disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to September 1982, from January 2003 to June 2003, and from December 2004 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision. The Veteran testified at a Board videoconference hearing in November 2019. 1. New and material evidence having been received, the claim of service connection for transient vision loss and retrobulbar polyps is reopened. The Veteran seeks service connection for what he has described as a left eye condition. 11/04/2014, Third Party Correspondence. The record reflects that service connection is already in effect for a scar in the left eyelid area (previously rated as squamous papillomas, left eyelid). The June 2015 rating decision denied a higher rating for the service-connected left eyelid scar; it also determined that new and material evidence had not been received a previously denied claim of service connection for transient vision loss and retrobulbar polyps. The present appeal relates to the latter issue. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In this case, a November 2013 rating decision denied service connection for transient vision loss and retrobulbar polyps. See 11/19/2013, Rating Decision, at 2 (contained within the discussion of higher rating for left eyelid scar). The Veteran did not appeal this decision, and new and material evidence was received within one year of notice of the decision. The Board notes that the present appeal stems from a claim that was received on November 4, 2014, within one year of notice the November 2013 rating decision (November 20, 2013). The November 2014 claim, which consists of a letter from the Veteran’s attorney, indicates the following: “Please consider this letter as a New Claim for service connection of disability benefits on the following conditions.” This sentence is followed by a list of six conditions, of which “left eye condition” is number six. 11/04/2014, Third Party Correspondence. As there is no indication that the Veteran was appealing and/or disagreeing with the November 2013 rating decision, the Board finds that the November 2013 denial of service connection for transient vision loss and retrobulbar polyps became final. Since the final denial in November 2013, VA has new and material evidence to reopen the Veteran’s claim. Significantly, the Veteran has submitted oral testimony regarding his history of left eye issues. 11/09/2015 & 11/26/2019, DRO & Board Hearing Transcripts, respectively. In detail, the Veteran has indicated that his left eye vision impairment was either incurred or aggravated during his second period of service. This theory of entitlement has not been considered by a VA examiner. In this regard, the Board notes that the November 2013 denial is based on a June 2013 VA opinion that only addressed the question of secondary service connection. This new evidence relates to an unestablished element of the previously denied claim and raises a reasonable possibility of substantiating the claim as it potentially establishes a connection between a current condition and an event in service. Therefore, the claim is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Service connection for left eye epiphora is granted. As already mentioned, the Veteran asserts that he has a left eye disability (described as visual impairment) that was incurred or aggravated in service. For the reasons explained below, the Board finds that service connection for left eye epiphora (excessive tearing) is warranted. Service treatment records show that, in May 2004, the Veteran was diagnosed with squamous papilloma in the left lower eyelid and chronic skin fissures of the left upper eyelid. The Veteran reported that these lesions first manifested while serving in Iraq and Jordan. 08/29/2005, Medical Treatment Record - Non-Government Facility, at 4; 06/01/2011, STR-Medical, at 7. An undated request for serological testing appears to indicate that the date of onset for the papilloma was April 2003, while the Veteran was on active duty. 06/01/2011, STR-Medical, at 8. In November 2004, one month prior to the Veteran’s last period of active duty service, the Veteran underwent what appears to be a private eye examination. The only eye symptoms reported were itching in the left eye and excessive eye watering. He was diagnosed with an unspecified lid disorder, presbyopia, and hyperopia. 06/01/2011, STR-Medical, at 19-20. A September 2005 note from the Walter Reed Army Medical Center (several months after service) reflects that the Veteran was evaluated for chronic left eye symptoms. The note indicates that the Veteran had been deployed to Jordan six months before developing a pruritic papule on the left eye lid. The Veteran reported that this condition had progressed to lid edema and frequent eye watering. The treating provider noted that the Veteran’s symptoms were edema (swelling), erythema (skin redness), and pruritis (itching). Thereafter, a November 2007 report of medical history reflects that the Veteran reported a disease on his left eye, related to service in Iraq. 12/29/2014, STR-Medical, at 14. These records are consistent with the Veteran’s assertion that his left eye disability was incurred or aggravated in service. A May 2013 VA examination shows diagnoses of dermatitis of the left upper and lower eye lids, papilloma of the left upper lid and left lower lid, subjective transient vision loss of undetermined etiology, and epiphora (secondary to the dermatitis and papilloma). Service connection for squamous papillomas, left eyelid, was established in a September 2007 rating decision. In December 2008, the disability was recharacterized as scars in the left eyelid area, as it resulted in a more favorable rating for the Veteran. 12/01/2008, Rating Decision. As service connection is already in effect for the skin/eyelid aspects of the Veteran’s left eye disability, the Board finds that the Veteran is already compensated for the diagnoses of dermatitis and squamous papillomas of the left upper and lower eyelids. As such, the question for the Board is whether the Veteran has additional left eye disability that warrants service connection. As mentioned above, the May 2013 VA examination shows diagnoses of transient vision loss and epiphora (excessive tearing). Based on the evidence summarized above, the Board finds that service connection for epiphora (excessive tearing) is warranted. In this regard, the Board notes that the May 2013 VA examination identifies this diagnosis as secondary to the service-connected skin/eyelid disability. The etiology of the subjective transient vision loss, however, remains unclear. This aspect is discussed in the Remand section. REASONS FOR REMAND 1. Entitlement to service connection for subjective transient vision loss is remanded. As discussed above, a May 2013 VA examination shows a diagnosis of subjective transient vision loss of unknown etiology. In a June 2013 opinion, the May 2013 VA examiner opined that this diagnosis is less likely than not related to the Veteran’s service-connected left eyelid disability. The examiner, however, did not address whether the Veteran’s vision impairment was incurred in service or whether it is related to the now service-connected epiphora of the left eye. For these reasons, the Board finds that another VA examination is necessary to adjudicate this matter. 2. Entitlement to service connection for a disability manifesting as fatigue is remanded. The Veteran seeks service connection for a disability manifesting as fatigue. 11/04/2014, Third Party Correspondence. The June 2015 rating decision characterized the claimed disability as chronic fatigue syndrome. In the absence of a diagnosis of chronic fatigue syndrome and considering the Veteran’s suggestion that his chronic fatigue could be the manifestation of an undiagnosed illness, the Board has decided to recharacterize the issue on appeal, as stated above. At a June 2015 VA examination, the Veteran reported that he easily gets tired. He reported sleeping only four hours and feeling exhausted in the morning. The Veteran also referenced a history of nightmares and night sweats. The Board notes that the Veteran is service-connected for posttraumatic stress disorder (PTSD). The June 2015 VA examiner concluded that the Veteran does not meet the criteria for a diagnosis of chronic fatigue syndrome but noted that she was unable to provide a diagnosis and medical opinion for the claimed fatigue because the Veteran did not report to a scheduled sleep study. Notwithstanding, in a separate DBQ (Gulf War General Medical Examination), the same VA examiner indicated that treatment records clearly document sleep impairment in relation to the Veteran’s PTSD. At a November 2015 DRO hearing, the Veteran’s representative questioned the adequacy of the June 2015 VA examination. 11/05/2015, Hearing Transcript. Essentially, the Veteran’s representative suggested that the VA examiner had a negative tone, to include doubts regarding the Veteran’s reports of service in Iraq. At the November 2019 Board hearing, the Veteran indicated that he regularly experiences fatigue. He also referenced joint and body pain. He mentioned that, for him, a good night sleep is just four hours, after which he feels tired. He denied ever undergoing a sleep study. The Veteran’s representative suggested at the hearing that the Veteran’s symptoms could be due to an undiagnosed illness. Service connection may be presumed for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, which includes an undiagnosed illness. 38 C.F.R. § 3.317. To qualify for the presumption, the Veteran’s service must have been in the Southwest Asia theater of operations, which the regulation defines as Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, United Arab Emirates, Oman, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and airspace between these locations. Id. In this case, the Veteran’s DD Form 214 indicates that he received a Southwest Asia Service Medal with a Bronze Star and that she served on the USS Mount Baker. The Southwest Asia Service Medal was awarded to veterans with service in Southwest Asia, but also to those serving in Israel, Egypt, Turkey, Syria, and Jordan, which are countries that do not fall within the regulatory definition of the Southwest Asia theater of operations for presumptive service-connection purposes. 38 C.F.R. § 3.317. In this case, the Veteran has reported service in Southwest Asia. See, e.g, 08/29/2005 & 10/24/2008, VA 21-526 Veterans Application for Compensation or Pension. More specifically, at a June 2015 VA psychiatric examination, he stated that he was deployed to Jordan in 2002, adding that he was deployed to Iraq for approximately eight days in May 2002. He reported an additional deployment to Jordan for approximately four months between March and June of 2005. 06/09/2015, C&P Exam, at 3. The Veteran’s DD-214s confirm that the Veteran served in Jordan from March 2003 to May 2003 but are silent regarding a deployment to Iraq. They do show active service in support of Operation Iraqi Freedom and receipt of the Global War on Terrorism Expeditionary Medal. Jordan does not fall within the regulatory definition of the Southwest Asia theater of operations for presumptive service-connection purposes. 38 C.F.R. § 3.317. Iraq, however, does, and the Veteran has reported an eight-day deployment to Iraq in May 2002. This date, however, creates some confusion, as there is no indication that the Veteran was on active duty in May 2002. Rather, his last two DD-214s indicate that he served on active duty from January 2003 to June 2003, and from December 2004 to February 2005. The Board assumes that the Veteran is somehow confusing the dates of his reported deployment to Iraq. The Board further notes that the record does not include any formal determination by the RO as to whether the Veteran in fact served in Southwest Asia, in which case he would eligible for presumptive service connection under 38 C.F.R. § 3.317. Based on the above, the Board finds that additional development is necessary. First, the RO should take appropriate action to verify the Veteran’s report of service in Southwest Asia. Second, the RO should schedule the Veteran for a VA examination to determine the nature and etiology of his chronic fatigue symptoms. 3. Entitlement to a higher rating for PTSD, currently rated as 70 percent disabling, is remanded. The June 2015 rating decision granted service connection for PTSD, rated as 30 percent disabling, effective November 4, 2014. A May 2017 rating decision assigned a higher rating of 70 percent, effective May 9, 2017. The Veteran last underwent a VA examination in May 2017. His testimony at the November 2019 Board hearing suggests that the Veteran has since experienced a worsening of his mental health symptoms. In detail, the Veteran testified that he stopped working in August 2018 and then in April 2019, without prior notice to his spouse, went away for three months, during which he resided at a homeless shelter. As there an indication that the Veteran’s mental health symptoms have worsened since the last VA examination, the Board finds that a new examination is needed. 38 C.F.R. § 3.327(a). Additionally, the Board notes that the Veteran reported ongoing VA treatment. VA treatment records were last associated with the claims file in May 2017. On remand, the RO must obtain any VA treatment records since May 2017. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. At his November 2019 Board hearing, the Veteran raised the issue of entitlement to a TDIU. He indicated that he stopped working in August 2018 and described himself as incapable of maintaining a full-time job due to his mental health disability. He reported last working as a maintenance supervisor at a big-box store. This issue of entitlement to a TDIU is under the Board’s jurisdiction as part and parcel of the Veteran’s claim for a higher rating for his PTSD. Notwithstanding, the Board finds that it lacks relevant evidence to adjudicate the TDIU claim. Significantly, the Veteran has not submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, which would include relevant information regarding his work and education history. As such, the appropriate course of action is to remand the TDIU claim back to the RO, so that it can conduct any development necessary to adjudicate the Veteran’s claim. These matters are REMANDED for the following actions: 1. Take appropriate action to verify the Veteran’s service in Iraq or any other part of Southwest Asia. Document the claims file with the requests/responses. 2. Obtain any outstanding VA treatment records since May 2017. 3. After completing #1 and #2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current visual impairment. (a.) The examiner must opine whether any visual impairment is at least as likely as not related to an in-service injury, event, or disease. (b.) Alternatively, the examiner must opine whether any visual impairment is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Additionally, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current disability manifested as fatigue. The examiner must address the following: (a.) Are the Veteran’s complaints of chronic fatigue attributable to a known clinical diagnosis? (b.) For any known clinical diagnosis, is it at least as likely as not (probability of 50 percent or more) that such disorder is related to the Veteran’s service? (c.) Alternatively, is any known clinical diagnosis at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. (d.) If the Veteran’s fatigue is not attributable to a known clinical diagnosis, is it due to an undiagnosed illness or medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome or fibromyalgia? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Additionally, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 6. Conduct any development deemed necessary to adjudicate the Veteran’s TDIU claim, to include sending the Veteran a VA Form 21-8940 and request that it be completed and returned to VA. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.