Citation Nr: 21065412 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-44 428 DATE: October 26, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for left eye injury is reopened; the claim is granted to this extent only. As new and material evidence has been received, the claim for entitlement to service connection for acquired psychiatric disorder is reopened; the claim is granted to this extent only. REMANDED Entitlement to service connection for left eye injury is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a lumbar back disorder is remanded. Entitlement to service connection for left lower radiculopathy is remanded. FINDINGS OF FACT 1. A May 2000 Board decision denied the Veteran's claim for entitlement to service connection for a left eye injury. 2. The evidence received since the May 2000 decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a left eye injury. 3. An August 2002 rating decision denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. While the Veteran submitted a notice of disagreement (NOD) for this rating decision, the Veteran did not submit a substantive appeal after the statement of case (SOC) was issued. 4. The evidence received since the August 2002 rating decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for left eye injury. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1980 to November 1989 and from December 1989 to May 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2017 and February 2019 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in June 2021. The transcript has been associated with the record. New and Material Evidence A rating action from which an appeal is not perfected becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. As new and material evidence has been received, the claims for entitlement to service connection for a left eye injury and an acquired psychiatric disorder, are reopened; the claims are granted to this extent only. 1. Left eye injury In an April 1996 rating decision, the Veteran's claim for service connection for left eye injury was denied claiming that while there was a record of treatment in service for foreign body left eye, no permanent residual or chronic disability subject to service connection was shown by service medical records or demonstrated by evidence following service. The evidence of record included service treatment records (STRs) and a VA examination. The Veteran filed an NOD in June 1996 and the RO issued an SOC in July 1996. The Veteran filed a substantive appeal in January 1997. In a May 2000 Board decision, the issue of entitlement to service connection for a left eye injury was denied. The Veteran did not appeal this decision to the CAVC nor is there any evidence that the Veteran attempted to reopen the issue until October 2017. Therefore, the May 2000 Board decision was final with regard to the issue of entitlement to service connection for a left eye injury. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.156(b), 3.160(d), 20.302, 20.1103. Since the May 2000 Board decision became final, the Veteran testified that he has been diagnosed with multiple eye disorders since the last 1999 VA eye examination, that he has consistently complained of issues with his eyes since service, that his military occupational specialty exposed his eyes that caused problems, and that his eye has been bothering him ever since his left eye injury during service. Moreover, since May 2000, additional STRs and post-service medical records have been added to the record. The Board finds that the low threshold requirement for new and material evidence is satisfied with respect to the Veteran's claim regarding service connection for a left eye injury. Shade v. Shinseki, 24 Vet. App. 110 (2010). When considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claims. Thus, the Board finds that new and material evidence has been submitted and the petition to reopen the claim of entitlement to service connection for a left eye injury must be granted. 2. Acquired psychiatric disorder In an August 2002 rating decision, the Veteran's claim for service connection for an acquired psychiatric disorder was denied claiming that the medical treatment records did not reflect that the Veteran's acquired psychiatric disorder was due to his right-hand problems or that it was incurred in or aggravated by military service. The evidence of record included STRs, VA treatment records up until 2001, and private treatment records up until March 2002. The Veteran filed a NOD for the issue of service connection for an acquired psychiatric disorder and a SOC was issued in January 2003. However, the Veteran did not certify his acquired psychiatric appeal to the Board. Therefore, the August 2002 rating decision is final with regard to this issue. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.156(b), 3.160(d), 20.302, 20.1103. Since the August 2002 rating decision, the Veteran testified that he started experiencing mental health issues in service and was even treated for it during military service. He furthered that his MOS caused worry, nervousness, and unease while working and had a lot of anxiety that he was going to exceed his radiation exposure. He reported that he became isolated and had trouble sleeping. He also explained that he was diagnosed with PTSD and acute severe adjustment disorder in October 1987 and that he was prescribed Xanax. In addition to the Veteran's testimony, relevant VA treatment records were also associated with the record. The Board finds that the low threshold requirement for new and material evidence is satisfied. Shade v. Shinseki, 24 Vet. App. 110 (2010). When considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claims. Thus, the Board finds that new and material evidence has been submitted and the petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder must be granted. REASONS FOR REMAND 1. Entitlement to service connection for left eye injury is remanded. Since the Veteran's claim for service connection for his left eye injury was denied in May 2020, relevant evidence has been associated with the record that warrants a remand. The Veteran was last afforded a VA examination regarding his left eye in 1999. Since then, the Veteran has received additional diagnoses for his eye including drying eyes, glaucoma, cataracts, and gland dysfunction. Moreover, STRs show that the Veteran was seen for his left eye in August 1994. The record reported that plaster fell in his eye and that he afterwards felt a knot in his eye. The Veteran also testified that the plaster left a scar in his eye and that it has been bothering him ever since service. He also claimed that the radiation exposure due to his MOS caused problems in his eyes. The 1999 VA examination did not address any of these contentions or include the Veteran's lay statements. When VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The Board finds the 1999 VA examination inadequate for adjudication purposes. Thus, a new VA examination with a medical opinion must be obtained. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board finds that a remand is necessary to provide the Veteran with a VA examination. Under 38 U.S.C. § 5103A (d), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that an event, injury or disease occurred in service; (3) an indication that the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. The Veteran contends that his mental health problems began in military service mainly due to his MOS as a Navy nuclear component welder. He reported that he experienced anxiety, worry, nervousness, and unease while working on the submarine since he would wonder if he was going to exceed his radiation exposure. He reported that this caused him to be isolated and that he had trouble sleeping. He also reported that he was diagnosed with PTSD and acute severe adjustment disorder in October 1987. He furthered that he was prescribed Xanax and that he took the medication for about 30 to 45 days. He explained that his mental health symptoms began during service and have continued ever since then. This issue satisfies all the requirements for a VA medical examination. The Veteran has been diagnosed with a psychiatric disorder, the Veteran has alleged that his time in the military due to his MOS caused his mental health problems, and the Veteran has reported that he experienced mental health symptoms continuously since military service. Additionally, there is no examination that provides a medical opinion that takes into consideration the Veteran's statements regarding his mental health problems during military service and since then. Thus, as the record does not contain a medical opinion with regard to the etiology of the Veteran's psychiatric disorder, the criteria for an examination and opinion under McLendon are met, and remand is warranted. 3. Entitlement to service connection for a lumbar back disorder is remanded. A remand is warranted for a new VA examination and medical opinion as the previous VA examination was inadequate. The Veteran alleged that a motor vehicle accident caused his back and radiculopathy problems. The Veteran was afforded a VA examination in February 2020 where the Veteran was diagnosed with multilevel degenerative changes of the lumbar spine and left lower extremity radiculopathy. The Veteran reported that he worked as a nuclear welder during military service and had to use a Power CON 400-amp welder which weighed about 70 pounds. He explained that he had to carry this welder with him anywhere he went and had to go up and down very steep and narrow stairs on a daily basis carrying the welder and other welding supplies. He explained that the job put a lot of wear and tear on his body. He furthered that he went to sick call due to low back pain and was given medicine. He also reported that he still had low back pain after leaving military but did not see a medical provider until recently. A VA addendum medical opinion was issued in March 2020 where the examiner reported that there was no evidence that the Veteran had any chronic lumbar spine disorder while in the military and at the time of his discharge, he did not report any low back pain. The examiner furthered that the Veteran did not list having a back problem when he first submitted an application for compensation and pension in February 1996. The examiner also reported that the first VA examination provided to the Veteran did not document any type of lumbar spine disorder. The examiner continued to repeat that the Veteran did not have a chronic lumbar spine disorder during military service, nor did he have a chronic lumbar spine disorder documented proximate to his last military discharge date. The examiner furthered that unless it was specifically documented in the STRs that the Veteran had low back pain from welding it is less likely than not that his low back pain is due to his MOS as a welder years and years ago. During the Board hearing, the Veteran argued that the back VA examination was inadequate since it did not take into consideration the Veteran's statements of continuing symptoms from service. The Veteran furthered that he was in an accident in 1996 and went to medical where they took x-rays and did an examination and was sent back to his assignment. He furthered that he had to carry 70 to 90 pounds of portable welders on his shoulders on inclined ladders and had to kneel, crawl, and stoop throughout service all of which affected his back. He explained that even though the medical records show that he first started seeking treatment in 2002, he had back problems since leaving military service but had the mindset to tough it out. The Board finds the February 2020 and March 2020 VA examinations to be inadequate as they do not address the Veteran's lay statements regarding his continuing symptoms since military service. As such a new VA examination and medical opinion is necessary. 4. Entitlement to service connection for left lower radiculopathy is remanded. As the issue of entitlement to service connection for left lower radiculopathy is secondary to the entitlement to service connection for low back disability, it can be impacted by resolution of the Veteran's back claim being remanded. Thus, the Board finds that the issue of entitlement to left lower radiculopathy must be deferred, as it is inextricably intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his left eye disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: a. Is the left eye disability at least as likely as not related to service, including due to the left eye injury during military service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? b. Is left eye disability at least as likely as not related to in-service exposure to radiation due to the Veteran's MOS? 2. After the Veteran's reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include due to the anxiety caused by the Veteran's MOS. The examiner must discuss the Veteran's lay statements and address the mental health problems during military service. 3. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Is the low back disability at least as likely as not related to service, including due to the Veteran's MOS and daily activities during military service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for left lower radiculopathy. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.