Citation Nr: 0001574 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-12 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for residuals of a cataract of the left eye. 2. Whether new and material evidence has been submitted to reopen the claim of service connection for bilateral glaucoma. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to October 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision of the RO. The Board notes that in the veteran's brief on appeal his representative stated that the veteran's July 1997 written statement included a request for an increased evaluation for his service connected disability (ptosis). This additional claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. In April 1983, the RO denied the veteran's original claims of service connection for residuals of a cataract of the left eye and glaucoma. 2. The veteran received notice of the April 1983 decision, as well as his appellate rights, and did not file a timely appeal. 3. In December 1992, the RO granted service connection for a ptosis as secondary to a left eyelid laceration. 4. In December 1997, the RO determined that new and material evidence had not been submitted to reopen the claims of service connection for residuals of a cataract of the left eye and glaucoma. 5. New evidence which is so significant that it must be considered in order to fairly decide the merits of the claims has been associated with the claims folder since the April 1983 RO decision. 6. The veteran's claim of service connection for residuals of a cataract of the left eye is plausible. 7. The veteran's claim of service connection for glaucoma is plausible. CONCLUSIONS OF LAW 1. New and material evidence has been submitted for the purposes of reopening the veteran's claim of service connection for residuals of a cataract of the left eye. 38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). 2. The veteran has submitted evidence of a well-grounded claim of service connection for residuals of a cataract of the left eye. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 3. New and material evidence has been submitted for the purposes of reopening the veteran's claim of service connection for glaucoma. 38 U.S.C.A. §§ 5107, 5108, 7104, 7105; 38 C.F.R. § 3.156(a). 4. The veteran has submitted evidence of a well-grounded claim of service connection for glaucoma. 38 U.S.C.A. §§ 1110, 5107, 7104; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and material evidence When a claim is disallowed by the RO, appellate review is initiated by the filing of a Notice of Disagreement (NOD) within one year from the date of mailing of notice of the result of the initial disallowance. 38 U.S.C.A. § 7105(a), (b). If a NOD is filed within the one-year period, the RO shall issue a Statement of the Case. 38 U.S.C.A. § 7105(d). The veteran is provided a period of 60 days (or the remainder of the one-year period from the date of mailing of the notice of the determination being appealed) to file the formal appeal. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b). In the absence of a perfected appeal, the RO's decision becomes final, and the claim will not thereafter be reopened or allowed, except as otherwise provided. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (1999). 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. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) summarized the analysis in determining whether evidence is new and material in Evans v. Brown, 9 Vet. App. 273 (1996). VA must first determine whether the newly presented evidence is "new," that is, not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record. If new, the evidence must be "probative" of the issue at hand. However, there is no longer a requirement that, in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility that the outcome of the case on the merits would be changed. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitting sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). Finally, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In April 1983, the RO denied the veteran's claims of service connection for residuals of a left eye cataract and glaucoma. The veteran received an April 1983 notice of the decision as well as his appellate rights. He did not file a NOD. As the veteran did not file a NOD within one year of the April 1983 notice of the April 1983 rating decision, the decision became final. In December 1992, the RO granted service connection for a ptosis, as secondary to an in-service laceration of the veteran's left eyelid. The Board observes that the veteran's July 1991 claim for VA benefits included a claim of service connection for an "eye condition" which he had been treated for at the VA Medical Center (MC) in Buffalo, New York. Although the December 1992 rating decision noted that the veteran had received treatment for a left eye cataract and glaucoma, the decision did not specifically state whether service connection was granted or denied for those disabilities. At the time of the April 1983 rating decision, the evidence consisted of private medical evidence and the veteran's statements. The evidence submitted subsequent to the April 1983 rating decision includes the veteran's service medical records, VA medical records, statements from the veteran and private medical evidence. The service medical records contained a March 1952 treatment report which noted that the veteran had received a laceration wound to his left upper eyelid after walking into a door and breaking his glasses. The record also included VA outpatient treatment reports from April 1988 to August 1991 which indicated that the veteran had received treatment for various eye disabilities, including a ptosis, cataract removal and glaucoma. In a July 1997 written statement, the veteran requested that the RO reevaluate his claim of service connection for an eye disability. Also, in a September 1997 written statement, the veteran detailed his most recent symptoms, which included extremely watery eyes, pressure and "black floaters" in his eyes as well as occasional pus and matter accumulation in his eyes. The veteran also indicated that he had had cataracts removed from his left eye in 1981 and from his right eye in 1988. Additionally, the veteran stated, in a March 1998 NOD, that his service connected eye disability caused pressure, irritation and watering of his left eye. The veteran also indicated that he had discussed this with physicians at the VA facility in Buffalo, New York. The veteran also submitted, with his March 1998 NOD, copies of a 1976 medical pamphlet by John H. Park, M.D., Questions and Answers about CATARACTS, which stated that, although most cataracts were caused by the normal aging process, cataracts could also develop after an injury to an eye. In the veteran's June 1998 substantive appeal, he indicated that, in the December 1992 rating decision, a key statement from his private physician had been omitted. Specifically, the veteran indicated that the December 1992 rating decision relied on the March 1983 report from his private physician, which noted that he had had a cataract removed from his left eye and surgery on his left eye for glaucoma, only insofar as it stated that the physician was unable to specifically state if the current eye disability was due to the in-service injury. The veteran stated that the December 1992 rating decision did not mention that the physician had also stated that it was certainly well known that that direct eye trauma could cause damage which might not be apparent for many years. For clarity, the Board observes that the veteran's private physician, in his March 1983 report, said, "I am unable to specifically state if this problem he has had with his eye now is related to the injury in 1951 but certainly it is well known that direct trauma to the eye can cause damage that will not be apparent for many years." In discussing this evidence, the RO, in its December 1992 rating decision, said, "The physician indicated that he was unable to specifically state if this problem was related to the in service injury." The Board finds that the veteran's new evidence is so significant that it must be considered in order to fairly decide the merits of the claims. The evidence is certainly new, as it was not of record at the time of the April 1983 rating decision. Furthermore, it is material as it is probative of the issue of service connection. See 38 C.F.R. § 3.303. Thus, the Board finds that new and material evidence has been submitted to reopen the claims of service connection for residuals of a left eye cataract and glaucoma. II. Well groundedness As the veteran's claims have been reopened, the Board must now determine whether, based upon all the evidence of record in support of the claims, presuming its credibility, the reopened claims are well grounded pursuant to 38 U.S.C.A. § 5107(a). Elkins v. West, 12 Vet. App. 209 (1999) (en banc). Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The Court has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for the claim of service connection to be well grounded, there must be competent evidence of: (1) a current disability; (2) an in-service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In light of the medical evidence from the veteran's private physician indicating that, although he could not specifically state that his eye disability was related to the in-service injury, it was certainly well known that direct eye trauma could cause damage that might not be apparent for many years, the Board finds the claims of service connection for residuals of a cataract of the left eye and service connection for glaucoma to be well grounded. See Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). ORDER As new and material evidence has been received to reopen the claims of service connection for residuals of a cataract of the left eye and glaucoma and the claims are well grounded, the appeal is allowed to this extent, subject to further action as discussed hereinbelow. REMAND The Board observes that the veteran's representative indicated, in a January 1999 brief on appeal, that the veteran had received VA treatment related to his left eye and that records of that treatment were not associated with the claims folder. The Board observes that the most recent VA medical records associated with the claims folder is an October 1992 report of VA visual examination. The veteran claims in his March 1998 NOD, that he had requested, but had not received, a copy of a VA report of an October 1992 eye examination that he underwent at a VA clinic in Rochester, New York. The Board observes that the December 1992 rating decision lists an October 1992 examination report from the VA Medical Center (MC) in Buffalo, New York, as evidence considered. Given the imprecise nexus medical evidence of record, the veteran should be afforded a VA examination in order to determine if the etiologies of his current disabilities are likely related to service or if his claimed disabilities are aggravated by the service connected ptosis. In light of the action taken hereinabove, the Board notes that de novo review of the veteran's claims of service connection by the RO is required. See Bernard v. Brown, 4 Vet. App. 384 (1993). All indicated development should be undertaken in this regard, including examinations to determine the etiologies of his current disabilities. In light of the foregoing, the Board is REMANDING this case to the RO for the following actions: 1. The RO should take appropriate steps in order to contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for any eye disabilities. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, to specifically include records of VA treatment since October 1992, which have not been previously secured. 2. The RO should clarify whether the October 1992 VA report associated with the claims file is actually the claimed Rochester, New York VA report and, if it is, provide the veteran with a copy. If the RO determines the October 1992 VA report which is associated with the claims file is not the Rochester, New York VA report, the RO should obtain a copy of the report, associate it with the claims folder and provide a copy to the veteran. 3. Then, the RO should schedule the veteran for a VA examination to determine the likely etiologies of the cataract of the veteran's left eye and glaucoma. All indicated tests must be conducted. The claims folder must be made available to and reviewed by the examiner prior to the requested study. Based on the examination and review of the case, the examiner should provide an opinion as to the likelihood that the veteran's cataract of the left eye and glaucoma are due to disease or injury in service. The examiner should also provide an opinion as to the degree to which, if any, the veteran's cataract of the left eye and glaucoma are aggravated by the veteran's service connected ptosis. A complete rationale for any opinion expressed must be provided. The examination report should be associated with the claims folder. 4. After undertaking any necessary development, the RO should conduct a de novo review of the veteran's claims. Due consideration should be given to all pertinent laws and regulations. If the benefits sought on appeal are not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); Kutscherousky v. West, 12 Vet. App. 369 (1999). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals