Citation Nr: 22013550 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-49 114 DATE: March 9, 2022 ORDER New and material evidence having been received, the claims for service connection for a left eye disability and a right eye disability are reopened, and to this extent only, the appeals are granted. REMANDED Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for a left eye disability is remanded. Entitlement to nonservice-connected pension is remanded. FINDINGS OF FACT 1. The claims for entitlement to service connection for a left eye disability and a right eye disability were denied in a prior unappealed decision dated in November 2011 finding no current disabilities. 2. The evidence received since the November 2011 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claims for service connection for left and right eye disabilities. CONCLUSIONS OF LAW 1. The November 2011 rating decision regarding the claim for service connection for bilateral eye disabilities is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 2. The criteria to reopen the claim for service connection for bilateral eye disabilities are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1972 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in November 2016 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which adjudicated the claims on the merits. Regardless of the RO's decision to adjudicate these claims on the merits the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issues have been appropriately recharacterized above. The Veteran testified at a Board hearing in October 2021 and a transcript is of record. 1. New and material evidence having been received, the claims for service connection for a left eye disability and a right eye disability are reopened, and to this extent only, the appeals are granted. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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). The Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether this low threshold is met, VA should not limit its consideration to 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 the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. The Veteran's claims for bilateral eye disabilities were previously denied in a November 2011 rating decision. At the time of the November 2011 AOJ denial of service connection for bilateral eye disabilities, the relevant evidence of record included the Veteran's service treatment records (STRs) showing the Veteran entered service with a "noted" defective vision due to trauma in the right eye prior to service. Ultimately, however, the Veteran was fit for service. In June 1972, the Veteran reported scratching his "left eye" attempting to remove a sharp object with his fingernail. His service treatment records indicate the left eye "small foreign bodies" and the right eye injury prior to service and, therefore, he was recommended to be discharged from the Navy by reason of "erroneous enlistment." The record also included some VA outpatient treatment records. The November 2011 denial of service connection for a right eye disability was based, in part, on the fact that the STRs did not show worsening of a preexisting disability. The denial of service connection for a left eye disability was based, in part, on the fact that there was no evidence of diagnosed residuals from an in-service left eye injury. He did not appeal this decision or provide evidence within a year thereafter and, therefore, the decision is final Since the November 2011 decision, the Veteran underwent VA examinations for his eyes in November 2016, May 2018, and August 2018, and he testified at an October 2021 Board hearing and provided additional evidence surrounding his claimed disabilities. Specifically, the Veteran testified to left eye symptoms that persisted since the in-service eye injury, and that his right eye got worse during his time on active duty. The evidence is new, as it was not of record at the time of the prior denial. Furthermore, the evidence is material because it bears on the reasons for the prior denials. The evidence provided by the Veteran in his testimony purports to establish left eye residuals, and aggravation of a preexisting right eye disability. The VA examinations of record also directly address these issues. As such, the evidence also raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. The Board also presumes the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Justus, 3 Vet. App. at 513. Accordingly, the claims for entitlement to service connection for bilateral eye disabilities are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, as explained below, the claims must be remanded for additional development. REASONS FOR REMAND 1. Entitlement to service connection for a right eye disability is remanded. The Veteran was noted to have had "defective vision" and "poor vision" with acuity of 20/400 in his right eye at a May 1972 entrance examination. Thus, the Veteran's claim is not one of direct service connection, but rather for aggravation of a preexisting disability. A November 2016 VA examiner opined that there was no clinical evidence of aggravation of the vision loss in the right eye. A May 2018 VA examiner opined that that there was no aggravation shown because the only damage to the right eye was located in the macula and the scarring there is long-standing and stable. The Board finds that the opinions provided are inadequate because they do not address potentially relevant evidence, making a remand necessary. The Board notes that the Veteran's enlistment examination did not document any damage specifically to the macula and only referred to visual acuity. However, he was referred for a Medical Evaluation Board (MEB) in June 1972, and specific mention was made of a large macular hole in the right disc pole with slight detachment. Therefore, a VA examiner must specifically address whether either the macular hole or the detachment preexisted service or was indication of aggravation of a preexisting right eye disability. The Board also notes that the MEB records themselves have not been associated with the claims file. Therefore, on remand, the Veteran's military personnel records should be requested. 2. Entitlement to service connection for a left eye disability is remanded. The Veteran's left eye disability claim is for direct service connection. He contends that he has a current left eye disability related to an in-service eye injury. The November 2016 VA examiner provided a negative opinion and found that there was no diagnosed left eye disability. The May 2018 VA examiner similarly found that there were no residuals of the left-eye injury, as evidenced by no current scarring or damage to the left eye. However, the May 2018 VA examiner diagnosed the Veteran with cataracts. The August 2018 VA examiner explained that the Veteran's cataracts are not related to the 1972 in-service injury, but are from aging, and that there were no diagnoses, signs, or symptoms attributable to the injury. A remand is required to obtain a supplemental opinion addressing the Veteran's October 2021 Board testimony. The Veteran testified that he had watering and excessive tearing in his left eye following the 1972 injury, which persisted until approximately 2019. The Veteran also indicated that he had "floaters" and saw distorted images from the left eye. An addendum medical opinion must directly address whether the Veteran's reported symptoms are residuals or disabilities attributable to the in-service injury. Additionally, clarification should be requested from the Veteran on remand. He testified that he received post-service treatment for eye disabilities outside of VA. The Veteran mentioned St. Luke's, a county hospital, and Froedtert, but he did not mention any specific treatment provider (optometrist or ophthalmologist), or treatment dates. Finally, the Veteran testified to receiving monthly payments from the Social Security Administration (SSA). Records must be obtained on remand. 3. Entitlement to non-service-connected pension is remanded. The Veteran has not made any specific contentions regarding his entitlement to non-service-connected pension. However, the Board liberally construes his testimony to include a contention that he is entitled because he was discharged from service for a service-connected disability. See 38 U.S.C. § 1521 (j) (2012); 38 C.F.R. § 3.3 (a) (a veteran has met the necessary service requirements for pension if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a disability adjudged service-connected without presumptive provisions of law, or at time of discharge had such a service connected disability shown by official service records, which in medical judgment would have justified a medical discharge for service connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war.). In this regard, the Board notes that the MEB determined that the Veteran was unfit because of his vision. As the Veteran's claims for service connection for bilateral eye disabilities are being remanded, and the claim for pension is intertwined, it shall also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that two issues are inextricably intertwined where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources). The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records including Medical Board records. 2. Ask the Veteran to complete releases authorizing VA to obtain his records from the Social Security Administration (SSA). If releases are completed, make efforts to obtain SSA records, and associate them with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records. 3. After securing any necessary authorization, obtain any private treatment records that the Veteran may identify relevant to his eye claims, including from St. Luke's, a county hospital, and Froedtert. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 4. Obtain a supplemental opinion from a qualified VA examiner regarding the etiology of the Veteran's disabilities of the left eye and right eye. If the examiner determines that he or she cannot respond to the Board's inquiries herein without examining the Veteran, then an examination must be afforded. If an in-person examination is not feasible, then the Veteran should be afforded an examination by other means. All necessary tests should be conducted. The entire claims file and a copy of this remand should be made available to the examiner for review. The examiner is asked to address the following: (a.) The examiner should directly address the May 1972 enlistment examination indicating "poor vision," and "defective vision," and acuity in the right eye of 20/400, but no macular damage. The examiner must clarify the nature and diagnosis of the Veteran's preexisting right eye disability, and indicate whether the macular hole or detachment existed prior to service. A complete rationale must be provided. (b.) The examiner should provide an opinion as to whether there is an approximate balance of the positive and negative evidence showing that any right eye disability that preexisted service was aggravated by military service. (c.) If the Veteran's preexisting right eye disability was aggravated during service, the examiner must provide an opinion as to whether the aggravation was clearly and unmistakably beyond the disability's natural progression. (d.) The examiner should provide an opinion as to whether there is an approximate balance of the positive and negative evidence showing that the Veteran has a left eye disability that is etiologically related to or caused by active service. In addressing this inquiry, the examiner should discuss the Veteran's lay testimony regarding residuals of watering eyes, floaters, and distorted images in the left eye, and indicate whether they are residuals or attributable to a diagnosed left eye disability. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence and applicable medical principles. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.