Citation Nr: 22043751 Decision Date: 08/02/22 Archive Date: 08/02/22 DOCKET NO. 15-02 986 DATE: August 2, 2022 ORDER New and material evidence having been received, the petition to reopen a previously denied claim of entitlement to service connection for a left eye disorder is granted. The issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a skin disorder is dismissed. The issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a depressive disorder is dismissed. The issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a respiratory disorder is dismissed. The issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a sinus disorder is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for fatigue is dismissed. Entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to service connection for a sleep disorder, to include sleep apnea, is dismissed. REMANDED Entitlement to service connection for a left eye disorder is remanded. FINDINGS OF FACT 1. At his January 2022 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal as to the issues of entitlement to service connection for a skin disorder, hypertension, a depressive disorder, a respiratory disorder, a sinus disorder, fatigue, PTSD, and a sleep disorder. 2. The March 2005 Board decision denying the Veteran's claim of entitlement to service connection for a left eye disorder was the last final denial. 3. Evidence received since the March 2005 Board decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an eye disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for a skin disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for a depressive disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for a respiratory disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for a sinus disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for fatigue have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to service connection for a sleep disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The March 2005 Board decision denying the Veteran's claim of entitlement to service connection for a left eye disorder is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 10. The criteria to reopen the Veteran's claim of entitlement to service connection for a left eye disorder based on the receipt of new and material evidence have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, a Board virtual hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with claims file. The Board notes that the Veteran clarified during the January 2022 hearing that he sought entitlement to service connection for a left eye disability only. Therefore, the Board has characterized the issue on appeal accordingly. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 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 by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55 (a). The withdrawal should be filed with the Board and must include the name of the veteran, the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, then the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawals are effective when received by the Board if a decision has not been promulgated. 38 C.F.R. § 19.55 (b)(3). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). In this case, prior to the promulgation of a decision in the appeal, testimony received at the January 2022 Board hearing indicated that the Veteran wished to withdraw his claims of entitlement to service connection for a skin disorder, hypertension, a depressive disorder, a respiratory disorder, a sinus disorder, fatigue, PTSD, and a sleep disorder. The Board finds that the Veteran's oral statement expressing his intent to withdraw his appeal on these issues was "explicit, unambiguous, and undertaken with a full understanding of the consequences of such action." Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Moreover, the Board finds that the hearing transcript satisfies the written requirements of 38 C.F.R. §19.55 concerning the withdrawal of the appeal for these issues. See Tomlin v. Brown, 5 Vet. App. 355 (1993). Accordingly, the Board does not have jurisdiction to review the appeal and the issues of entitlement to service connection for a skin disorder, hypertension, a depressive disorder, a respiratory disorder, a sinus disorder, fatigue, PTSD, and a sleep disorder are dismissed. New & Material Evidence The Veteran seeks to reopen a previously denied claim of entitlement to service connection for a left eye disorder based on the receipt of new and material evidence. Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(c). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the last final denial of the Veteran's claim was a March 2005 Board decision which denied claims of entitlement to service connection for a left eye disorder and residuals of a right eye injury. These claims were denied on the bases that the evidence did not show a current left eye disorder or current residuals of a right eye injury. Evidence received since the March 2005 Board decision includes VA treatment records dated as recently as January 2022 showing diagnoses of senile bilateral cataracts as well as the transcript of the Veteran's January 2022 Board virtual hearing, at which time he testified that he experienced pain and blurriness in his left eye since a July 1969 in-service injury. This newly received evidence shows a currently diagnosed condition as well as the Veteran's competent testimony of symptomatology since service. As it relates to an unestablished fact necessary to substantiate the claim, it is material. The credibility of this new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to warrant reopening his claim of entitlement to service connection for a left eye disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND The Veteran seeks entitlement to service connection for a left eye disorder. Unfortunately, the Board finds that additional development must be undertaken before this claim can be adjudicated on the merits. The Veteran testified at his January 2022 Board virtual hearing that he suffered an in-service eye injury in July 1969. Specifically, the Veteran described being hit by another servicemember in the left eye with a can of beer. The Veteran indicated that he lost consciousness at the time of the injury, and was then treated at an evacuation hospital in Saigon, Vietnam, with his eye patched for a period of four days. The Veteran testified that he experienced pain and blurriness in his eye since the July 1969 injury. A review of the Veteran's service treatment records confirms that he sustained an eye injury in July 1969, although the records are unclear as to whether this was an injury to the right eye or to the left eye. A July 1969 treatment note indicated that the Veteran was struck in the right eye "by fist" and suffered a small hematoma, after which time he was admitted to the emergency room of the 24th Evacuation Hospital. Another treatment record diagnosed the Veteran as having traumatic hyphema of the right eye after being hit with a beer can and placed him on a physical profile. However, a Physical Profile Record dated later that month diagnosed the Veteran as having a healing internal hemorrhage of the left eye and indicated that he should not fire weapons, drive motor vehicles, use power tools, or use binoculars. Significantly, on his February 1970 Report of Medical History at separation from service, the Veteran reported having eye trouble. As indicated above, the Veteran testified at his January 2022 Board hearing that he experienced pain and blurriness in his left eye since the July 1969 injury. Moreover, recent VA treatment records reflect diagnoses of senile bilateral cataracts. To date, the Veteran has not been provided a VA examination to determine the likely onset and/or etiology of any current eye disorder. Although a VA General Medical examination in February 1993 discussed his eye symptoms and medical history, it did not provide an etiological opinion. Based on the above evidence, the Board finds that VA's duty to obtain a medical opinion relevant to this issue has been triggered under McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA must provide a VA examination or obtain a medical opinion where there is a current disability, and an indication the disability may be related to the veteran's service, but there is insufficient medical evidence to decide the claim). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for an examination to determine the likely nature and etiology of any diagnosed left eye disorder, to include cataracts and complaints of eye pain and blurred vision. The examiner should review the claims file and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the examination report. All relevant eye pathology shown on examination should be annotated in the examination report. Following a review of the claims file, as well as an interview with, and examination of, the Veteran, the examiner is asked to answer the following: a. List any left eye disability by either (1) diagnosis or (2) functional impairment that presently exists or that has existed during the appeal period. b. For each left eye disability identified, opine as to whether it is at least as likely as not (50 percent or greater probability) that any such diagnosed left eye disability was incurred during the Veteran's active service, or is otherwise causally related to his active service or to an incident therein. In answering these questions, the examiner should consider and address the service treatment records showing treatment for an eye injury in July 1969, the Veteran's report of eye trouble on his February 1970 Report of Medical Examination at separation from service, and the Veteran's hearing testimony that he experienced left eye pain and blurred vision since the July 1969 in-service injury. (Continued on the next page) The examiner is advised that the Veteran is competent to report that he has had symptoms such as eye pain and blurred vision since active service. If the examiner has reason (based on other evidence of record or medical knowledge) to question the Veteran's self-reported history, then the examiner should so state and provide a complete explanation why this is so. A complete rationale for all opinions expressed must be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, then it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.