Citation Nr: 22051168 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 19-14 188 DATE: September 8, 2022 ORDER As new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a right eye condition, the application to reopen is granted. REMANDED Entitlement to service connection for right eye condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a left shoulder condition is remanded. FINDINGS OF FACT 1. In a May 1982 rating decision, the Regional Office (RO) denied service connection for a right eye condition; the Veteran did not perfect an appeal of this decision and it is final. 2. Evidence received since the May 1982 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim seeking service connection for a right eye condition. CONCLUSIONS OF LAW 1. The May 1982 rating decision that denied service connection for a right eye condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence received since the May 1982 rating decision is new and material and serves to reopen the claim seeking service connection for a right eye condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1975 to May 1978. In December 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims file. New and Material Evidence A claim that has been denied in an unappealed rating decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a right eye condition. In a May 1982 rating decision, the RO denied service connection for glaucoma. The basis of the denial was the Veteran's right eye condition was related to trauma sustained prior to the Veteran entering service. The Veteran filed a notice of disagreement with that decision and the RO issued an October 1982 Statement of the Case (SOC) and a December 1982 Supplemental Statement of the Case (SSOC) continuing the denial of service connection. No substantive appeal (VA Form 9) was received in response to either the October 1982 SOC or the December 1982 SSOC; therefore, the May 1982 rating decision became final. In April 2018, the Veteran filed a claim seeking service connection for a right eye condition. Such claim has been construed as a request to reopen the previously denied service connection claim for a right eye condition. Evidence received since the May 1982 rating decision consists of treatment records, VA examination reports, and hearing testimony from the Veteran. Moreover, the Veteran submitted medical treatise evidence which indicates that cold weather may trigger certain side effects or worsening preexisting glaucoma. Additionally, at the December 2021 Board hearing, the Veteran asserted that pain in his right eye worsened while in service. In particular, the Veteran testified that exposure to cold temperatures while serving on guard duty in Germany had caused excruciating pain in his right eye. This evidence is new because it was not previously associated with the claims file. This evidence also relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for a right eye condition. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for right eye condition is remanded. In May 2018, the Veteran underwent a VA examination to determine the nature and etiology of his right eye condition. The examiner diagnosed enucleation of the right eye secondary to glaucoma and rendered a positive nexus opinion. For rationale, the examiner essentially wrote the evidence showed the Veteran's glaucoma had its onset in service. Thereafter, a new medical opinion was requested as it was noted the Veteran's eye condition clearly and unmistakably preexisted service. In July 2018, a VA medical opinion was produced, which opined the Veteran's right eye condition, which clearly and unmistakably preexisted service, was not clearly and unmistakably aggravated beyond its natural progression by the Veteran's active duty service. For rationale, the examiner wrote the Veteran had a right eye injury prior to service that resulted in enucleation. The examiner then wrote the record contained no indication that the eye condition had been aggravated further by service. See July 2018 VA Medical Opinion. The Board finds the July 2018 VA examiner's opinion to be conclusory as the examiner failed to provide any explanation of the underlying medical principles involved in concluding the Veteran's right eye condition was clearly and unmistakably not aggravated by service. For this reason, the July 2018 VA medical opinion is insufficient for rating purposes. In May 2022, the Veteran underwent another VA examination to determine the nature and etiology of his right eye condition. Following an examination of the Veteran, the examiner opined that the Veteran's right eye condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. See May 2022 VA Medical Opinion. This opinion is similarly conclusory as the examiner failed to provide any explanation of the underlying medical principles involved in concluding the Veteran's right eye condition was clearly and unmistakably not aggravated by service. For this reason, the May 2022 VA examination is insufficient for rating purposes. Given the above, remand is warranted to obtain a VA medical opinion that assesses whether the Veteran's right eye condition, which clearly and unmistakably existed prior to service, was aggravated by his active duty service. In particular, the Veteran has submitted medical treatise evidence indicating that cold weather may trigger certain side effects or worsen preexisting glaucoma. Similarly, the Veteran testified that while stationed in Germany, he performed guard duty in temperatures as low as 19 below. The Veteran indicated that these cold temperatures resulted in excruciating pain in his right eye. These contentions have not been addressed by a VA examiner and, on remand, the examiner should consider and discuss whether the Veteran's preexisting right eye condition was aggravated by his in-service exposure to cold temperatures. 2. Entitlement to service connection for right and left shoulder conditions is remanded. In June 2022, the Veteran underwent a VA examination to determine the nature and etiology of his right and left shoulder conditions. The examiner diagnosed left and right shoulder strains and rendered a negative nexus opinion. For rationale, the examiner wrote the Veteran's service treatment records (STRs) reflected that the Veteran sustained a shoulder injury in November 1975; however, subsequent to that in-service injury, the record contained no documented continuation of care for a shoulder condition until June 2013. For this reason, the examiner opined the Veteran's current right and left shoulder conditions were less likely than not related to an in-service event, injury, or illness. See June 2022 VA Examination. The Board finds the June 2022 VA examination insufficient for rating purposes as an opinion based on the absence of documentation in the record is inadequate if it fails to consider the Veteran's reports of symptoms and history. See Dalton v. Nicholson, 21 Vet. App. 23. Here, the June 2022 VA examiner failed to consider or discuss the Veteran's statements regarding experiencing intermittent shoulder pain and easily reinjuring his shoulders subsequent to his initial in-service injury. For this reason, the Board finds the June 2022 VA examination insufficient for rating purposes. Accordingly, remand is warranted in order to obtain a VA medical opinion consistent with the directives herein. The matters are REMANDED for the following actions: 1. Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's right eye condition. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. The examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran's preexisting right eye condition was not aggravated beyond its natural progression by the Veteran's active duty service. The term "aggravated" in this context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. In rendering the above opinion, the examiner is instructed to consider and discuss the medical treatise evidence received in August 2019, which indicated winter weather may trigger certain side effects or worsen preexisting glaucoma. Additionally, the examiner should consider and discuss the Veteran's August 2019 decision review officer (DRO) and December 2021 Board hearing testimonies wherein he indicated he was exposed extremely cold temperatures while performing guard duty in Germany. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's left and right shoulder conditions. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's left and right shoulder conditions had their onset in, or are otherwise etiologically related to, the Veteran's active duty service. In rendering the above opinion, the examiner should consider and discuss the Veteran's August 2019 DRO hearing and his December 2021 Board hearing testimonies, wherein he described injuring his shoulders in basic training. Following the initial injury, the Veteran indicted his shoulder seemed to get better, but would "act up" again when he performed strenuous activities. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.