Citation Nr: 20021116 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 20-05 867 DATE: March 24, 2020 ORDER The claim for entitlement to service connection for laceration of the right eye and associated residuals (right eye condition) is reopened. Entitlement to service connection for the Veteran’s right eye condition is denied. Entitlement to service connection for a vision disability of the right eye is denied. REMANDED Entitlement to an increased disability rating for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for laceration of the right eye and associated residuals was originally denied in a rating decision of February 1985, which became final. 2. The denial of service connection for the Veteran’s right eye condition was confirmed and continued in a rating decision of October 2017. 3. The evidence received since the February 1985 rating decision is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim. 4. The Veteran does not have a current disability due to a laceration of the right eye which occurred during his active duty service. 5. It is less likely than not that the Veteran’s vision disability of the right eye is due to or aggravated by his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the issue of service connection for the Veteran’s right eye condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for laceration of the right eye and associated residuals have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a vision disability of the right eye have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to April 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of October 2017 and August 2018 issued by the Department of Veterans Affairs (VA) Regional Office (RO). Following the rating decisions on appeal, the Veteran timely filed notices of disagreement (NOD) in September and October 2018. The RO subsequently issued statements of the case (SOC) in October and November 2019 and the Veteran’s timely appeals to the Board followed in December 2019 and January 2020. Because the Veteran did not request a hearing in either of his appeals to the Board, no hearing before the undersigned VLJ was scheduled. 1. Whether new and material evidence has been received to reopen the issue of service connection for the Veteran’s right eye condition. The RO found that the Veteran had submitted new and material evidence regarding this claim in the October 2017 rating decision on appeal. See October 2017 Rating Decision at 2. However, under the legacy system of regulations, the Board reviews the RO’s findings de novo and must still address the issue of new and material evidence in its adjudication. See 38 C.F.R. § 3.104 (2018); cf. 38 C.F.R. § 3.104. Generally, “[if] new and material evidence is presented or secured with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108 (2018). “New evidence is evidence not previously part of the actual record… [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.” 38 C.F.R. § 3.156(a). 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.” Id. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Generally, disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). The Veteran submitted additional medical records and underwent an additional VA examination in November 2019. The Board therefore finds that additional evidence was submitted in support of each of the three Shedden factors and that the Veteran has presented new and material evidence sufficient to reopen his claim for service connection for his left knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection As previously noted, the assignment of service connection generally requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Where disabilities are “proximately due to or the result of a service-connected disease or injury[,]” such disabilities are also service connected. 38 C.F.R. § 3.310(a). 2. Entitlement to service connection for the Veteran’s right eye condition. The Veteran asserts that a right eye laceration “approximately 2.60 cm in the lower fold of the right eye” was “caused by the butt of a M-16 [rifle] while in the field… the rifle butt caused blunt force trauma and left me with a pain that feels similar to arthritis.” See November 2018 VA Form 21-4138 at 2; see also February 2015 Service Treatment Records (STR) at 15 (corroborating Veteran’s assertion with note of accidental injury in April 1973). The Veteran underwent a VA examination on this issue in November 2019. The VA examiner opined that “[although] the Veteran had a claimed condition of laceration right eye lid, there is no objective evidence to render a diagnosis on exam… [his] scar has completely healed[.]” See November 5 2019 VA Examination Report at 12. Accordingly, the medical evidence of record does not support the conclusion that the Veteran has any residuals of a right eye laceration incurred in service. “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the November 2019 VA examination may not have fully considered the Veteran’s assertion that his in-service injury “left [him] with a pain that feels similar to arthritits[,]” the Board notes that the Veteran has a separately compensable disability rating for migraine headaches. See 38 C.F.R. § 4.14 (providing that “evaluation of the same manifestation under different diagnoses [is] to be avoided”). The Board therefore finds that the first Shedden factor has not been met as to this claim; extended analysis of the remaining Shedden factors is therefore moot and the assignment of service connection for the Veteran’s claimed right eye condition is not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. 3. Entitlement to service connection for a vision disability of the right eye. As previously noted, the Veteran underwent a VA examination in November 2019. As part of that examination, the Veteran’s visual acuity was assessed by a separate VA examiner and the RO incorporated the resulting finding of a vision disability into its SOC. See November 6, 2019 VA Examination Report at 2-3; see also November 2019 SOC at 5; see also January 2020 VA Form 9 at 2 (appealing all issues listed in the SOC). Because this VA examiner diagnosed the Veteran with bilateral cataracts, the Board finds that the first Shedden factor has been met on this issue. As previously noted, the Veteran’s STR corroborate his assertion that he incurred an injury to the right eye while in service. The Board therefore finds that the second Shedden factor has been met as well. However, this VA examiner opined that the Veteran’s bilateral cataracts “are unrelated to the upper eyelid laceration in 1973 which has resulted in no residual issues… [the] cataracts are minimal and are age related.” See November 6, 2019 VA Examination Report at 3. The Board has found no competent medical evidence to support the conclusion that the Veteran’s vision disability is at least as likely as not due to his active duty service. The Board therefore concludes that the third Shedden factor has not been met and that the assignment of service connection is not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to an increased disability rating for migraine headaches is remanded. The Veteran’s migraine headaches are rated as noncompensable from February 2017 and as 30 percent disabling from July 2019. See October 2019 Rating Codesheet at 1. He asserts entitlement “to an earlier effective date for the increase” as well as to a higher disability rating overall. See February 7, 2020 Correspondence at 1-2. The applicable rating criteria provide that a disability rating of 30 percent is assigned where there are “characteristic prostrating attacks occurring on an average once a month over [the] last several months[,]” and that a disability rating of 50 percent is not assigned unless there are “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran previously underwent a VA examination on this claim in July 2019. The VA examiner based the examination on a review of the Veteran’s records and did not conduct an examination in person. See July 2019 VA Examination Report at 1. Despite diagnosing the Veteran with migraine headaches, the VA examiner found that he did not experience headache pain or the characteristic prostrating attacks of migraines. See id. at 1-2. The sole basis for the VA examiner’s opinion on this point appears to be the absence of complaints of headache pain from the Veteran’s medical records of the previous two years. See id. at 2. However, the claims file does not appear to contain VA medical records more recent than the year 2007, nor did the July 2019 VA examiner explain the reasoning for the implicit conclusion that the Veteran’s assertions of headache pain were not credible. In support of his claim, the Veteran also submitted a disability benefits questionnaire (DBQ) completed by a private physician. See July 2019 DBQ. While the private physician’s notes are only partially legible, they appear to reflect his findings that the Veteran experiences characteristic prostrating attacks “[more] frequently than once per month[.]” See id. at 4. However, the private physician’s notes do not appear to provide any indication as to the date from which these symptoms manifested. Accordingly, neither the VA examination nor the private physician’s DBQ are sufficient to support adjudication of this claim. Where there is insufficient competent medical evidence in the record for the Board to adjudicate a claim, it must remand that claim for further development. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). This may include a retrospective medical opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008). Additionally, the Board notes that the Veteran filed a VA Form 20-0996 on this issue requesting adjudication under the Higher-Level Review lane of the Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA). However, this request was untimely filed. See February 10, 2020 VA Form 20-0996; cf. 38 C.F.R. § 19.2(d)(2); see also 38 C.F.R. § 19.52(b). Accordingly, this issue will remain within the legacy appeals process for adjudication. This matter is therefore REMANDED for the following action: 1. Obtain any VA medical records not yet associated with the Veteran’s claims file. If no such records exist, document efforts made to establish their nonexistence. 2. Schedule the Veteran for an examination before an appropriately qualified examiner. The examiner shall review the claims file, including a copy of this remand, and shall provide an opinion as to the current severity and symptoms of the Veteran’s migraine headaches. The examiner shall further opine as to whether such symptoms have remained consistent over time. If the examiner opines that such symptoms have varied for distinct periods of time, the examiner shall clearly explain the basis for their identification of such periods. If the examiner’s conclusions are not consistent with the Veteran’s assertions, the examiner shall clearly explain the basis for any finding that the Veteran’s assertions are not credible. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.