Citation Nr: 0001286 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-11 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The appellant had active duty service from December 1942 to November 1945. He was a prisoner of war (POW) of the German Government from September 1944 to April 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the appellant's claim of entitlement to service connection for vision loss, cortical cataracts and vertical diplopia, and increased the veteran's PTSD rating from 30 percent to 50 percent. An appeal was received only as to the denial of service connection. Notwithstanding the RO's characterization of the claim as a claimed for service connection, for the reasons provided infra, the Board has determined that the issue is more accurately characterized as stated on the cover page of this decision. FINDINGS OF FACT 1. In an unappealed decision, dated in July 1996, the RO denied a claim by the appellant for entitlement to service connection for "refractive error (previously claimed as vision loss)" and determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for cortical cataracts and vertical diplopia. 2. The evidence received since the RO's July 1996 decision is not cumulative of other evidence of record, and is probative of the issue at hand. 3. The claims file includes a medical diagnosis of an eye disorder related to mental and physical trauma sustained during service. CONCLUSIONS OF LAW 1. The RO's July 1996 decision, which denied service connection for "refractive error (previously claimed as vision loss)" and determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for cortical cataracts and vertical diplopia is final. 38 U.S.C.A. § 7105(b) (West 1991). 2. New and material evidence has been received since the RO's July 1996 decision, which denied service connection for "refractive error (previously claimed as vision loss)" and determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for cortical cataracts and vertical diplopia ,and the claim for an eye disorder is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The veteran's claim of entitlement to service connection for an eye disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material The Board initially notes that in an unappealed decision, dated in July 1996, the RO denied claims of entitlement to service connection for vision loss, cortical cataracts and vertical diplopia on a direct basis, see 38 C.F.R. § 3.303, and determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for "refractive error (previously claimed as vision loss)." See 38 C.F.R. § 3.156 (1999). Although a timely Notice of Disagreement was received, a timely Substantive Appeal was not received, and the RO's July 1996 decision became final. See 38 U.S.C.A. § 7105(b). However, applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened upon presentation of new and material evidence. See 38 U.S.C.A. § 5108. In December 1997, the veteran filed an application for what the RO characterized as "service connection for vision loss, cortical cataracts and vertical diplopia, secondary to service-connected post-traumatic stress disorder." See 38 C.F.R. § 3.310 (1999). In December 1997, the RO denied the claim solely on an analysis under 38 C.F.R. § 3.310. The U.S. Court of Appeals for Veterans Claims (Court) has held that pursuant to 38 C.F.R. 20.202, and the duty to assist under 38 U.S.C.A. 5107, the Board is required to review all issues which are reasonably raised from a liberal interpretation of the appellant's substantive appeal. Meyers v. Derwinski, 1 Vet. App. 127 (1991); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the evidence submitted by the veteran includes two letters from Kent K. Scholl, M.D., dated in September 1998 and March 1999, respectively. In these letters, Dr. Scholl stated that the veteran weighed about 73 pounds upon his liberation from captivity, and that he has had symptoms of an eye disorder (specifically, eye pain) since his service. Dr. Scholl essentially indicated that the veteran currently has an eye condition that is related to hardships sustained during his period as a POW, to include exposure to very cold temperatures, malnutrition, and mental trauma. Although Dr. Scholl's letters are somewhat unclear as to the exact nature of the veteran's current eye disorder, and whether such eye condition is related directly to his service or to his PTSD, under the circumstances the Board is convinced that Dr. Scholl's statements are sufficient to raise the issues of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for vision loss, cortical cataracts and vertical diplopia, as well as whether new and material evidence has been submitted to reopen a claim of service connection for "refractive error (previously claimed as vision loss "refractive error (previously claimed as vision loss)." The Board further finds that, given the overlapping nature and multitude of eye conditions claimed, the issue is more accurately characterized as whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disorder. Therefore, given the foregoing, and notwithstanding the RO's denial of the claim (to the extent that it was based on secondary service connection) on the merits, the Board will consider whether new and material evidence has been submitted. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). After reviewing the record from a longitudinal perspective, the Board finds that new and material evidence has been received to reopen the veteran's claim for service connection for an eye disorder. When a claimant seeks to reopen a claim based upon additional evidence, VA must perform a three-step analysis. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc). First, VA must determine whether the evidence is new and material under 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the second step of the Elkins analysis requires VA to reopen the claim and determine whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Finally, the third step of the Elkins analysis requires VA to evaluate the claim on the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. The Court has indicated that in order to reopen a claim, there must be new and material evidence presented or secured since the last determination denying the benefit sought. See Elkins v. West, 12 Vet. App. at 213-214. Accordingly, the Board must consider whether new and material evidence has been received since the RO's July 1996 decision. In this case, the Board notes that in July 1996, the Board denied the veteran's claims after finding that the evidence did not show that any current vision loss, cortical cataracts or vertical diplopia was related to his service. The RO also determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for "refractive error (previously claimed as vision loss) as the evidence received was duplicative. However, as previously noted, evidence received since the RO's July 1996 decision includes two letters from Dr. Scholl in which he essentially indicated that the veteran currently has an eye condition that is related to hardships sustained during his period as a POW, to include exposure to very cold temperatures, malnutrition, and mental trauma. Based on the foregoing, the Board finds that as this evidence was not of record at the time of the RO's July 1996 decision, and as this evidence contains competent opinions showing that the veteran has an eye disorder, and that such eye disorder is related to the veteran's service, this evidence is not cumulative, and is "new" within the meaning of Elkins, supra. The Board further finds that as the evidence did not show that the veteran had an eye disorder that was related to his service at the time of the RO's July 1996 decision, the submitted evidence is probative of the issue at hand, and is material. Accordingly, the Board finds that new and material evidence has been submitted. The claim for an eye disorder is therefore reopened, and the Board proceeds with its review of the evidence on a de novo basis. II. Service Connection As a preliminary matter, the Board finds that as a decision on the issue which was initially on appeal (i.e., the RO's March 1998 denial of a claim for service connection for vision loss, cortical cataracts and vertical diplopia secondary to service-connected PTSD) could have a significant impact on the outcome of the issue of entitlement to service connection for an eye disorder, as outlined in Part I, supra, these issues are considered inextricably intertwined and must be decided together. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). The Board further finds that these issues should be combined, and are most accurately characterized as a claim of service connection for an eye disorder, to include as secondary to PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In addition, service connection may be granted for disability shown to be proximately due to or the result of a service- connected disorder. 38 C.F.R. § 3.310(a) (1999). This regulation has been interpreted by the Court to allow service connection for a disorder which is either caused or aggravated by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). To establish that a claim for service connection is well grounded, an appellant must demonstrate a medical diagnosis of a current disability; medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464 (1997); see also Reiber v. Brown, 7 Vet. App. 513 (1995); Martin v. Derwinski, 1 Vet. App. 411 (1991) (applying well-grounded requirement to claims based on secondary service connection under 38 C.F.R. § 3.310(a)). In this case, the veteran's service medical records are remarkable for an induction examination report, dated in November 1942, which show that he was found to have simple myopia, bilateral, with 20/20 corrected vision. The veteran was a POW of the German Government from September 1944 to April 1945. No eye abnormalities, other than refractive error, were noted in the veteran's separation examination report, dated in November 1945. The post-service evidence includes a report from E. R. Torrence, M.D., dated in May 1952, who states that the veteran's diagnoses included "probable avitaminosis." In addition, as previously stated, the claims file contains two letters from Dr. Scholl, dated in September 1998 and March 1999, respectively, in which Dr. Scholl essentially stated that the veteran has had symptoms of an eye disorder (specifically, eye pain) since his service, and that the veteran currently has an eye condition that is related to hardships sustained during his period as a POW, to include exposure to very cold temperatures, malnutrition, and mental trauma. As stated previously, Dr. Scholl's letters are somewhat unclear as to the exact nature of the veteran's current eye disorder, and whether such eye condition is related directly to his service or to his PTSD. However, under the circumstances the Board is convinced that Dr. Scholl's statements are competent evidence which links the continuity of eye symptoms reported by the veteran to his service, see Savage v. Gober, 10 Vet. App. 488 (1997), such that the claim for an eye disorder is well-grounded. 38 U.S.C.A. § 5107(a). ORDER The veteran's claim of entitlement to service connection for an eye disorder is well grounded, and to this extent, the appeal is granted subject to the following remand provisions. REMAND Having submitted a well-grounded claim for an eye disorder, a remand is required in order to assist the veteran in developing the facts pertinent to his claim. See 38 U.S.C.A. § 5107(a). The Board initially notes that although it has determined that Dr. Scholl's letters are sufficient to reopen his previously denied claims, and to render the instant claim well-grounded, a review of Dr. Scholl's letters, dated in September 1998 and March 1999, shows that they are deficient in several respects. Specifically, Dr. Scholl did not specify a diagnosis involving the veteran's eyes, and it is unclear as to whether Dr. Scholl is asserting whether the veteran has an eye disorder directly as a result of his service, or as a result of his PTSD. Furthermore, Dr. Scholl's opinions are not supported by citation to clinical findings during service or thereafter, are not enhanced by any additional medical comment, and appear to be conclusory in nature. In addition, it is not apparent that Dr. Scholl reviewed the veteran's service medical records. On remand, Dr. Scholl should be contacted and afforded an opportunity to supplement his letters with additional comment. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a); Talley v. Brown, 6 Vet. App. 72, 74 (1993). This duty includes conducting a thorough and contemporaneous medical examination of the veteran. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Furthermore, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, given the complex history and nature of the veteran's claim, which include the veteran's POW status during service, the evidence of severe weight loss during such captivity, the possibility of application of the presumptive provisions at 38 C.F.R. § 3.309(c) (which include optic atrophy associated with malnutrition), Dr. Scholl's opinions, the possibility of a relationship to his service- connected PTSD, and the possibility of interrelated eye disorders, the Board is convinced that a remand is required to afford the veteran a comprehensive ophthalmologic and neuropsychiatric examinations in order to determine the nature and etiology of the veteran's eye disorders. Therefore, in order to give the appellant every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. Accordingly, this case is REMANDED for the following action: 1. The RO should contact the veteran to ascertain if there are any additional treatment reports, VA or otherwise, relating to evaluation or treatment for an eye disorder that he would like considered in connection with his current claim. If the veteran indicates that additional records are available, the RO should obtain and associate those records with the claims file. 2. The veteran should be afforded an opportunity to contact Dr. Scholl and request that he supplement his opinions in his letters of September 1998 and March 1999. If the veteran avails himself of this opportunity, he should request that Dr. Scholl provide a current diagnosis of the veteran's eye disorder(s), and any other supporting rationale for his conclusion that the veteran has an eye disorder related to his service or to the service connected PTSD. 3. The RO should afford the veteran VA ophthalmologic and neuropsychiatric examinations. The purpose of these examinations is to determine the nature and etiology of any current eye disorder. A complete history of the veteran's eye problems should be elicited from the veteran and from the available medical records. All specialized testing should be completed as deemed necessary by the examiners. In particular, the examiners should expressly state an opinion as to whether the veteran currently has an eye disorder (other than refractive error) in either eye. If an eye disorder is found one or both eyes, the examiners should state whether it is at least as likely as not that such eye disorder is related to his service, including the veteran's POW experiences, or to his PTSD. A clear rationale should be furnished for all opinions rendered. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1999), copies of all pertinent medical records in the veteran's claims file or, in the alternative, the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).