Citation Nr: 21072799 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 08-11 098 DATE: December 6, 2021 ORDER The appeal of the issue of entitlement to service connection for obstructive sleep apnea is dismissed. New and material evidence has been received and the petition to reopen a claim of service connection for vision loss is granted. REMANDED Entitlement to service connection for vision loss is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to special monthly pension is remanded. FINDINGS OF FACT 1. In June 2016 correspondence, the Veteran indicated that he wished to withdraw his appeal of entitlement to service connection for obstructive sleep apnea. 2. In an August 2002 rating decision, the RO denied entitlement to service connection for vision loss on basis that the Veteran did not have evidence of a current disability. The Veteran did not file a timely notice of disagreement; therefore, the decision became final. Evidence received since the August 2002 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for obstructive sleep apnea by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. New and material evidence has been received to reopen the claim of service connection for vision loss. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to September 1967, with service in the Republic of Vietnam from January 1967 to September 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision which, in pertinent part, denied service connection for PTSD, reopened a claim of service connection for vision loss on the basis that new and material evidence had been received, but continued to deny the claim on its merits, and denied entitlement to special monthly pension. The Board remanded these claims in November 2009 to obtain outstanding Social Security Administration records and for the issuance of a supplemental statement of the case (SSOC). In April 2015, the Veteran and his spouse testified before a Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the transcript is of record. These matters also come to the Board on appeal from a March 2015 rating decision which denied entitlement to service connection for sleep apnea. In September 2015 and November 2020, the Board remanded the issues to obtain outstanding VA treatment records, and so that a statements or supplemental statements of the case (S/SOCs) could be issued for the issue of entitlement to service connection for vision loss, an acquired psychiatric disorder, to include PTSD, and obstructive sleep apnea, and entitlement to special monthly pension. In an April 2021 letter, the Veteran was notified that the VLJ who held the hearing on the issues of entitlement to service connection for vision loss and an acquired psychiatric disability and entitlement to special monthly pension is no longer with the Board and offered the opportunity to appear for another Board hearing. In May 2021 correspondence, the Veteran declined to appear at another Board hearing. Withdrawn Claims 1. Entitlement to service connection for obstructive sleep apnea. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, in June 2016, the Veteran submitted written correspondence indicating that he wished to withdraw the appeal of his claim of service connection for obstructive sleep apnea. In August 2016 correspondence, VA acknowledged that the Veteran had withdrawn his appeal. Although the Board included the issue in its November 2020 remand for issuance of an SSOC, the Veteran's withdrawal of his substantive appeal was effective when it was received by the Board. 38 C.F.R. § 20.205. As the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Reopening Claims Despite the RO's action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for vision loss before addressing the claim on its merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Whether new and material evidence has been received to reopen a claim of service connection for vision loss. In an August 2002 rating decision, the RO denied entitlement to service connection for vision loss, claimed as secondary to diabetes mellitus, type II associated with herbicide agent exposure, on the basis that the Veteran did not provide evidence of a current diagnosis of loss of vision. The Veteran was notified of the decision by an August 2002 letter but did not file a notice of disagreement; therefore, the August 2002 rating decision became final. In September 2006, the Veteran filed to reopen his claim of service connection. Since the August 2002 rating decision, evidence added to the claims file includes VA treatment records and examination reports, lay statements, and private treatment records. VA treatment records dated in February 2003 reflect a diagnosis of glaucoma, right eye cataract surgery, and left eye blindness. A February 2007 VA examination report notes central vision loss of the right eye caused by refractive error, loss of peripheral vision of the right eye due to glaucoma, aphakia of the right eye, and left eye blindness due to old trauma. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final August 2002 rating decision. Specifically, the evidence shows a current diagnosis. Thus, new evidence submitted since the RO's August 2002 decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., a current disability) necessary to substantiate the claim. Therefore, new and material evidence has been received since the RO's August 2002 rating decision and reopening the claim of service connection for vision loss is warranted. The Veteran's petition is granted only to this extent. REASONS FOR REMAND 1. Entitlement to service connection for vision loss is remanded. The Board cannot make a fully-informed decision on the issue of service connection for vision loss because no VA examiner has opined whether the Veteran's cataracts, aphakia, or glaucoma is related to in-service herbicide agent exposure. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder at this time. While a March 2012 VA examiner opined that the Veteran's diagnosed depressive disorder was less likely than not incurred in or caused by service, the examiner's opinion appears to be primarily based on an absence of treatment in service or after service. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion, and it does not appear that the examiner considered a May 1967 service treatment record noting the Veteran complained of being run down and nervous all the time or whether his acquired psychiatric disorder was otherwise related to service. Remand is required for an addendum VA opinion as to the nature and etiology of the Veteran's acquired psychiatric disorder. 3. Entitlement to special monthly pension is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for a vision disability and acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to special monthly pension, the issues are inextricably intertwined. A remand of the claim for special monthly pension is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from July 2021 to present. 2. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran's claimed vision disability, to include cataracts, aphakia, and glaucoma. The examiner must review the claims file. An in-person examination is not required unless deemed so by the examiner. The examiner is asked to identify all diagnosed vision disabilities. The examiner is asked to provide a response to the following: For each diagnosed vision disability, to include cataracts, aphakia, and glaucoma, is the disability at least as likely as not related to service, including in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the vision disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the opinion(s). 3. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran's acquired psychiatric disorder, diagnosed as depressive disorder. The examiner must review the claims file. An in-person examination is not required unless deemed so by the examiner. The examiner is asked to identify all diagnosed psychiatric disorders. The examiner is asked to provide a response to the following: For each diagnosed psychiatric disorder, the examiner must opine whether the disability is at least as likely as not related to an in-service injury, event, or disease, to include service in the Republic of Vietnam and a May 1967 in-service complaint of being run down and nervous all the time. 4. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.