Citation Nr: 22016163 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-51 977 DATE: March 21, 2022 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral eye disorder. Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Service connection for a bilateral eye disorder is remanded. FINDINGS OF FACT 1. An unappealed October 2015 rating decision denied service connection for impaired vision. 2. Evidence received since the October 2015 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's bilateral eye disorder claim. 3. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's psychiatric disorder is related to service. CONCLUSIONS OF LAW 1. The October 2015 rating decision denying the claim of service connection for impaired vision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a bilateral eye disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the United States Army from September 1983 to December 1983, with additional service, including periods of inactive duty for training (INACDUTRA), with the Army National Guard of Oklahoma. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2017 and February 2018 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim of service connection for PTSD and depression has been recharacterized to include all psychiatric disorders in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, the Veteran's claim of service connection for bilateral eye disorder has been recharacterized to include all eye disorders in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether new and material evidence has been received to reopen service connection for a bilateral eye disorder. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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 evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Moreover, in determining whether this 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 one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Historically, an unappealed October 2015 rating decision denied the Veteran's claim of service connection for impaired vision based on a finding that no disability was shown. No additional evidence pertinent to this issue was associated with the claims file within the one-year appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the October 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. The instant claim for service connection for a bilateral eye disorder was received in January 2018. Since the October 2015 rating decision, the Veteran submitted additional evidence, including a September 2017 VA ophthalmology report diagnosing pterygium with corneal flattening extending into the visual axis, and presbyopia. This evidence is new, in that it was not previously of record at the time of the October 2015 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for a bilateral eye disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Veteran asserts that service connection is warranted for his acquired psychiatric disorder because the disorder started while he was in service. In support of his claim, the Veteran reported having psychiatric problems since service due to the verbal and physical abuse and assault of his drill sergeants. See June 2020 Appellant's Brief; see also June 2017 Veteran statement. Additionally, he has stated that he was discharged earlier from service due to his traumatic event. His service record shows that he was discharged from the military earlier than his end of service. See Enlistment/Reenlistment Document (showing his Army National Guard service was intended to be for a period of six years, that is, until August 1989). The Veteran has been diagnosed with multiple psychiatric disorders. See, e.g., July 2018 VA examination. Thus, the Veteran has a current disability, and establishes the first element for service connection. The Board acknowledges that in the November 2018 Statement of the Case the RO denied this claim due to the Veteran not reporting and documenting the incidents of abuse in service. However, the Board notes that a claim of service connection for a psychiatric disorder based on personal assault refers broadly to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. 38 C.F.R. § 3.304(f)(5). VA acknowledges the unique problems veterans face in documenting their claims because of the sensitive and extremely personal nature of assault. To compensate for the difficulties in reporting and producing evidence to support the occurrence of a stressor, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. In fact, the absence of in-service reports or treatments cannot be considered "negative evidence" in personal assault cases. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Significantly, unlike in other psychiatric disorder claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor personal assault claims. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). Here, the Board finds that the medical and lay evidence linking the Veteran's psychiatric disorder to service is probative, competent and credible. Indeed, the July 2018 VA examiner opined that his psychiatric disorder was at least as likely as not incurred or caused by the in-service injury, event, or illness. Additionally, the Veteran provided credible statements about his in-service assault, and the Board finds him competent and credible to report recurrent psychiatric problems since service. Collectively, the lay and medical evidence shows that it is at least as likely as not that the Veteran's current psychiatric disorder is related to service. Thus, after resolving any doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's psychiatric disorder is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). Finally, while the Board acknowledges that the Veteran has several psychiatric diagnoses, it finds that such diagnoses are encompassed in his claim for entitlement to service connection for a psychiatric disorder. In Velez, the Court held that "treating each [psychiatric] diagnosis as a separate claim 'would force a veteran to continually file new claims as medical evidence is developed during his initial claim.'" Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Clemons v. Shinseki, 23 Vet. App. 1 (2009)). Accordingly, the instant decision represents a total grant of benefits as to the issue on appeal. REASONS FOR REMAND 3. Entitlement to service connection for a bilateral eye disorder. The Veteran reports that service connection is warranted for his bilateral eye disorder due to exposure to smoke, dirt and dust at Fort Sill, Oklahoma. See June 2020 Appellant's Brief. Additionally, as noted above, the record shows that he was diagnosed with pterygium and presbyopia. See September 2017 VA ophthalmology treatment report. The Veteran asserts that service connection is warranted for his eye impairment since it was related and has been recurrent since service. The Board finds the Veteran's report of having bilateral eye problems since service both competent and credible. To date, there remains no examination or opinion that has addressed the etiology of the Veteran's bilateral eye disorder. In light of the evidence presented, the Board finds that the "low threshold" requirement under McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met, and the Veteran should be afforded a VA examination to determine the nature and etiology of his bilateral eye disorder. The matter is REMANDED for the following action: 1. Obtain complete VA and non-VA treatment records of the Veteran's bilateral eye disorder. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral eye problems. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must identify all eye disorders/functional impairment found to be present. The examiner must opine as to whether it is at least as likely as not that the Veteran's eye disorder/functional impairment is related to or had its onset in service, to specifically include whether such is related to exposure to smoke, dirt and dust at Fort Sill, Oklahoma. In responding to the above inquiries, the examiner must review all the competent medical and lay evidence, about the Veteran's bilateral eye disorder onset, etiology, nature and symptoms in and after service. Additionally, a complete rationale must be given for all opinions and conclusions expressed. In offering this opinion, the examiner must acknowledge and discuss the Veteran's competent lay statements of his disorder and any lay evidence regarding the onset of his disorder. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.