Citation Nr: 21029267 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-06 593 DATE: May 13, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for frostbite residuals of the feet is reopened; to that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a right eye disability is reopened; to that extent only, the appeal is granted. Entitlement to service connection for a right eye disability is denied. REMANDED Entitlement to service connection for a bilateral foot disability, to include residuals of frostbite, is remanded. Entitlement to an initial compensable rating for the service-connected traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A February 2010 rating decision denied entitlement to service connection for frostbite residuals based on finding the evidence did not show the Veteran experienced frostbite in service or had residuals of frostbite related to service. An April 2014 rating decision found new and material evidence had not been received to reopen the matter. 2. Since the April 2014 rating decision became final, evidence relating to the nature of a current disability has been received. This evidence relates to an unestablished fact necessary to substantiate the claim of service connection for frostbite residuals of the feet, and it raises a reasonable possibility of substantiating such claim. 3. The April 2014 rating decision denied entitlement to service connection for an eye disability based on a finding that a current disability had not been diagnosed. 4. Since the April 2014 rating decision became final, evidence relating to the nature of a current eye disability has been received. This evidence relates to an unestablished fact necessary to substantiate the claim of service connection for a right eye disability, and it raises a reasonable possibility of substantiating such claim. 5. The weight of the evidence is against finding that the Veteran has a right eye disability that was incurred in service or is otherwise related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for frostbite residuals of the feet; thus, the Veteran's petition to reopen his claim is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right eye disability; thus, the Veteran's petition to reopen his claim is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for service connection for a right eye disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1979 to August 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2016 and January 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The June 2016 rating decision, in pertinent part, found new and material evidence had not been received to reopen previously denied claims of service connection for frostbite residuals and a right eye disability. The January 2018 rating decision granted service connection for a TBI and assigned a 0 percent rating from April 25, 2016. The Veteran testified at a hearing before the undersigned in February 2020. A transcript of the hearing is of record. As acknowledged at the February 2020 hearing, the Board finds the Veteran has raised the issue of entitlement to TDIU as part of his claim seeking an increased rating for the service-connected TBI. See Rice v. Shinseki, 22 Vet. App. 447 (2009). REFERRED As will be explained in greater detail below, the Board has found the criteria of service connection for a right eye disability have not been met. In his April 2016 claim to reopen a previous denial of service connection for an eye disability, the Veteran specifically indicated he was seeking service connection for a right eye disability. However, a November 2017 VA examiner opined a left eye cornea scar was at least as likely as not a residual of an in-service injury. The Board finds the issue of service connection for a left eye disability is not encompassed by the claim for service connection for a right eye disability. As noted, the Veteran limited his claim to a right eye disability. Notably, at the February 2020 Board hearing, the Veteran indicated his claimed right eye condition was more severe than a left eye conditoin. See Velez v. Shinseki, 23 Vet. App. 199 (2009) (holding that the focus of the Board's consideration as to whether a claim was one to reopen should be on "whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' . . . or whether it is evidence tending to substantiate an element of a previously adjudicated matter"). Accordingly, the issue of entitlement to service connection for a left eye disability should be adjudicated by the AOJ. New and Material Evidence Claims Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "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). The United States Court of Appeals for Veterans Claims (CAVC) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a "low" threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen entitlement to service connection for frostbite residuals of the feet. A February 2010 rating decision denied entitlement to service connection for frostbite residuals based on finding the evidence did not show the Veteran experienced frostbite in service or had residuals of frostbite related to service. An April 2014 rating decision found new and material evidence had not been received to reopen the matter. The Veteran did not perfect an appeal to the Board or submit new and material evidence within one year of the determinations. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. As previously noted, a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a petition to reopen this claim in April 2016. The pertinent evidence of record in April 2014 included the Veteran's service treatment records; post-service treatment records; the Veteran's lay statements regarding a cold-related injury he reported he sustained in service; and a September 2009 VA examination report that shows hallux valgus, hammertoes, and degenerative joint disease of the right foot were diagnosed. Evidence received since the April 2014 rating decision became final includes a November 2017 opinion from the Veteran's VA treatment provider, who noted objective evidence of nerve pain was observed on examination. As the evidence provides for the possibility that the Veteran has a current nerve-related foot disability, the Board finds that this new evidence received relates to an unestablished fact necessary to substantiate the claim for service connection for frostbite residuals of the feet, and raises a reasonable possibility of substantiating such claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for frostbite residuals of the feet. To that extent only, the appeal is granted. 2. Whether new and material evidence has been received to reopen entitlement to service connection for a right eye disability. The April 2014 rating decision denied entitlement to service connection for an eye disability based on a finding that a current disability had not been diagnosed. The Veteran did not perfect an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. As previously noted, a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a petition to reopen his claim in April 2016. The pertinent evidence of record in April 2014 included the Veteran's service personnel records, service treatment records, and VA treatment records showing a corneal scar of the left eye, but not the right, had been diagnosed. Evidence received since the April 2014 rating decision became final includes a November 2017 VA examination report that shows bilateral cataracts have been diagnosed. As the evidence shows the Veteran has a current right eye disability, the Board finds that this new evidence received relates to an unestablished fact necessary to substantiate the claim for service connection for a right eye disability, and raises a reasonable possibility of substantiating such claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for a right eye disability. To that extent only, the appeal is granted. Entitlement to service connection for a right eye disability. The Veteran is seeking service connection for a right eye disability, which he contends was incurred in an in-service motor vehicle accident when glass struck his eye. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The first question before the Board is whether the Veteran has a current right eye disability. The November 2017 VA examination report and VA treatment records show bilateral cataracts have been diagnosed during the pendency of the appeal. Therefore, the remaining question before the Board is whether the right eye cataract is etiologically related to the Veteran's military service. The Veteran's service treatment records show he complained of a foreign body sensation in his right eye in January 1984 after he was involved in a motor vehicle accident and was struck by broken glass. A corneal abrasion was diagnosed. An October 2001 VA treatment record notes the Veteran reported some blurred vision while reading, but noted his last eye examination was during service and denied having cataracts or glaucoma. A February 2011 VA treatment record notes the Veteran denied having eye pain or blurred vision. An examination of the eyes was normal. A May 2013 VA optometry evaluation report notes the Veteran eyes appeared clear and that the Veteran denied a history of an eye injury. September 2015, April 2017, and June 2018 VA eye assessment reports shows a corneal scar of the left eye was diagnosed, but that the right eye cornea was normal. Bilateral cataracts and dry eye were diagnosed in April 2017. The Veteran was provided a VA eye examination in November 2017. The examiner diagnosed a cornea scar in the left eye and bilateral cataracts. The examiner indicated no scars were present in the right eye and opined there were no residuals of injury related to the in-service complaint of a foreign body sensation in the right eye. Based on a consideration of the above, the Board finds the evidence weighs against finding the Veteran has a right eye disability that was incurred in or caused by service. The Board finds the November 2017 VA examiner's opinion to be highly probative because he provided a rationale that shows he considered the Veteran's reported history and the medical evidence. His findings are also supported by the VA treatment records that show the right eye was found to be normal on multiple examinations until cataracts were diagnosed in April 2017. The Board has also considered the Veteran's general assertions that he has a right eye disability that is related to his service. However, because he is a layperson, he is not competent to opine on the etiology of an eye condition, which is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Accordingly, the Board finds the weight of the evidence is against finding that the Veteran has a right eye disability that was incurred in service or is otherwise related to service. The claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability, to include frostbite residuals. Initially, given that post-service treatment records show multiple foot disabilities, the Board has recharacterized the reopened claim of service connection for frostbite residuals to include all foot disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence). While service connection was previously denied for hallux valgus and hammertoes, the Board finds the Veteran's current appeal encompasses any diagnosed foot disabilities, including skin conditions and neurological disabilities, to allow for consideration of the various disabilities and the Veteran's overlapping contentions. See Velez v. Shinseki, 23 Vet. App. 199 (2009) (holding that the focus of the Board's consideration as to whether a claim was one to reopen should be on "whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' . . . or whether it is evidence tending to substantiate an element of a previously adjudicated matter"). The Board regrets the additional delay in adjudication it will cause, but finds the issue of service connection for a bilateral foot disability, to include frostbite residuals, must be remanded for a new VA examination. The Veteran was provided a VA examination in January 2010. The examiner diagnosed hallux valgus with degenerative joint disease of the right foot and bilateral hammertoes and opined the disabilities were unrelated to the Veteran's foot blisters treated during active service. She explained that the Veteran's service treatment records do not indicate he was treated for frostbite and that the diagnosed disabilities were "boney abnormalities" that were unrelated to the soft tissue blisters he was treated for during service. However, in November 2017, the Veteran's VA treatment provider opined that the Veteran had a skin disability, hyperkeratotic tissue, that was incurred in service. Significantly, the podiatrist also found there was objective evidence of foot pain due to nerve damage, but did not address the etiology of any such neurological disability of the feet. Accordingly, the nature and etiology of the various foot disabilities is very unclear in this record. A remand to schedule an examination and obtain an adequate etiology opinion is required. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 2. Entitlement to an initial compensable rating for the service-connected TBI is remanded. The Board regrets the additional delay in adjudication it will cause but finds this issue must be remanded for a new examination. The Veteran underwent a VA TBI examination in November 2017. He reported at the February 2020 Board hearing that he believed he experienced memory loss, balance difficulties, and blurred vision because of the TBI. Accordingly, the Board finds that a remand to schedule an updated examination is required. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 3. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the issues of service connection for a right foot disability and entitlement to a compensable rating for the service-connected TBI, and must therefore also be remanded to be adjudicated concurrently. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. If possible, the Veteran should get these records themselves. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed bilateral foot disability, to include residuals of frostbite and a skin disability. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: (a) Provide diagnoses for any foot disabilities. (b) For each toe disability diagnosed, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it originated during active service or is otherwise etiologically related to active service. The examiner must not ignore the Veteran's competent reports of the claimed in-service injury or of symptoms experienced during active service and since. (Continued on the next page) The examiner must include in the medical report the rationale for any opinion expressed. 3. Schedule the Veteran for a VA examination with a suitably qualified medical professional to address the severity of his service-connected TBI. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must include in the medical report the rationale for any opinion expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.