Citation Nr: 1648557	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  14-18 824	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a bilateral eye disorder, to include as due to radiation exposure, and if so, whether the reopened claim should be granted.  

2.  Entitlement to service connection for gout. 


ATTORNEY FOR THE BOARD

A. N. Nolley, Associate Counsel 








INTRODUCTION

The Veteran was a member of the Air National Guard and served on various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from January 1985 to January 2001.  He served on active duty from December 1997 to March 1998.  As discussed below there is also an indication that the Veteran served on active duty from in late 1998 and early 1999.  Verification of this service will be handled on remand.    

This case comes before the Board of Veterans' Appeals (Board) on appeal of November 2010 and May 2013 rating decision by the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) in Decatur, Georgia. 

In July 2015, the Board remanded the case for a Board hearing.  The hearing was scheduled for a date in February 2016.  He was notified by way of a letter dated December 2015, but he failed to appear for the hearing.  The Veteran has not provided a reason for the failure to appear or requested that the hearing be rescheduled; thus, the Board deems the hearing request withdrawn.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of entitlement to service connection for a bilateral eye disorder and gout are addressed in the REMAND section below and are remanded to the Agency of Original Jurisdiction (AOJ). 


FINDINGS OF FACT

1.  A December 2004 rating decision denied the claim of entitlement to service connection for a bilateral eye disorder; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period.

2.  Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim.  


CONCLUSIONS OF LAW

1.  The December 2004 rating decision is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2004).

2.  New and material evidence has been presented to reopen a claim of entitlement to service connection for a bilateral eye disorder.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C.A. §7105(c) (West 2014).  The exception to this rule is 38 U.S.C.A. § 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.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

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 U.S. Court of Appeals for Veterans Claims (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."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).

The RO initially denied service connection in December 2004 based on its determination that the Veteran's eye disorder was not incurred in or caused by military service.  The Veteran was notified of the denial by a letter dated in December 2004.  He did not appeal the denial or submit any pertinent evidence within the appeal period.  Therefore, that decision is final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2004).

In September 2010, the Veteran claimed service connection was warranted for a bilateral eye disorder.  

The evidence of record in December 2004 consisted of the Veteran's service treatment records.  Service treatment records dated in December 1998, while the Veteran was serving in Saudi Arabia, showed that the Veteran complained of difficulty focusing and was given an assessment of possible presbyopia.

The evidence received after the expiration of the appeal period includes statements from the Veteran, Social Security Administration (SSA) records, VA treatment records, and private treatment records.  A February 2014 private treatment record from Archbold Primary Care showed the Veteran's reported that his eyes were harmed by in-service radiation.  A January 2012 SSA record indicated that the Veteran complained of blurred vision and painful eyes.  Examination showed that his vision was 20/20 in the right eye and 20/40 in the left eye.  In an October 2012 statement the Veteran reported radiation exposure while serving in Eskan Village in Saudia Arabia.  He asserted that the radiation was caused by a klystron that he used to complete his daily duties on a radio van.  He described an incident when another serviceman removed a cover while repairing the radio van, which caused his eyes to burn.  He stated that he was taken to a doctor on base, but was later sent to another doctor in Saudi Arabia where he was given sunglasses.  An August 2016 eye clinic note included impressions of early cataracts of both eyes and presbyopia.  During that examination the Veteran reported that he was unable to see for three days in service when he was in close proximity to satellite equipment, which he described as radiation from a microwave oven.  He reported yellow puss since then.  The statements provided by the Veteran regarding his in-service exposure and the additional medical records showing a diagnosis of cataracts, constitute new and material evidence.  This follows, because the evidence relates to previously unestablished elements that are necessary to grant entitlement to service connection for a bilateral eye disorder.  Accordingly, reopening of the claim for service connection for a bilateral eye disorder is warranted.  


ORDER

New and material evidence having been received the claim of entitlement to service connection for a bilateral eye disorder is reopened.


REMAND

Bilateral Eye Disorder

The Board finds additional development is required before the Veteran's claims are decided.  At the outset, the Board notes that the Veteran has not been afforded a VA examination in response to his claims.

VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).  The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold.  McLendon, 20 Vet. App. at 83  

The medical evidence of record includes diagnoses of bilateral cataracts and presbyopia.  The Veteran asserted that his bilateral eye disorder was caused by exposure to radiation during service.  Military personnel records reflect that his military occupational specialty was a wideband communication equipment specialist.  The Veteran reported that he was exposed to radiation while working on a radio van and using a klystron.  He stated that his wideband communication equipment included a klystron that produced microwave radiation.  He also described an incident during which the radio van cover was left open for maintenance and he experienced watery red eyes as a result.  Service treatment records show that the Veteran was seen in December 1998 due to problems with adjusting to changes in light or darkness and focusing to read.  The assessment was presbyopia and he was referred for further evaluation.  The Veteran was later seen at a private ophthalmology clinic in Saudi Arabia where he was given plastic glasses.  Thereafter, service treatment records showed that a pair of reading glasses was ordered.  Based on the above, the Board finds that the low threshold necessary to provide an examination has been established in this case.

The Veteran claimed that he was exposed to microwave-type radiation from a radar van, wideband communication equipment, and a klystron.  The Court has taken judicial notice that radar equipment emits microwave-type non-ionizing radiation which is not subject to review under the ionizing radiation statute and regulations.  Rucker v. Brown, 10 Vet. App. 67 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984).  The VA regulations found at 38 C.F.R. §§ 3.309 and 3.311 provide instructions on the development of claims based on exposure to ionizing radiation, however, as the Veteran is claiming exposure to what is described as non-ionizing radiation, such development procedures are not applicable in the present case.  Even so, a remand is warranted to obtain a medical opinion as to whether the Veteran's bilateral eye disorder is related to service, to include the alleged non-ionizing radiation.  

Of note, the Veteran has been diagnosed with bilateral cataracts and presbyopia.  With regard to presbyopia, refractive error of the eye is not a disease or injury for VA compensation purposes.  38 C.F.R. § 3.303(c).  

Gout

The Veteran asserted that he developed gout in 1998 during his active duty service in Saudi Arabia.  He reported that he was given Celebrex, ibuprofen, and Motrin.  He also stated that he was given crutches and a cane because he was unable to walk.  

Service treatment records are silent as to complaints of, diagnosis of, or treatment for gout.  However, it appears that the Veteran's service treatment records may be incomplete.  The Board notes that the RO's request for the Veteran's service treatment records indicated that his last period of active duty ended in March 1998.  However, military personnel records indicated that the Veteran was called to active duty from November 1998 to January 1999.  Although the service treatment records contain entries dated in November and December 1998, additional records from that period of active duty, to include a physical examination, are not contained in the record.  Therefore, the Board finds that a remand is required to obtain all outstanding service treatment records, particularly those records for his active duty service from November 1998 to January 1999.  Additionally, there is no DD-214 for the period of active duty from November 1998 to January 1999.  As such, a remand is required to ascertain the dates of the Veteran's service, including ACDUTRA and INACDUTRA.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain the Veteran's complete service treatment records and military personnel records, to include for any period of duty from October or November 1998 to January or February 1999, as well as service treatment records from his service in the Air National Guard.  

2.  Verify all periods of active duty service, ACDUTRA, and INACDUTRA from January 1985 to January 2001, to include through analysis of pay records if necessary. 

3.  Obtain any outstanding medical records for the Veteran's claimed disabilities.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified.

4.  Once the record is developed to the extent possible, schedule the Veteran for a VA eye examination.  The Veteran's file must be made available to and reviewed by the examiner.  Any indicated studies should be performed.  The Veteran's lay history of symptomatology should also be recorded and considered. Based on the examination of the Veteran and a thorough review of the record, the examiner should provide an opinion as to the following:

Whether it is at least as likely as not (a 50 percent probability or greater) that any current eye disorder, other than refractive error of the eyes, originated during a period of military service or is otherwise etiologically related to a period of military service, to include his claimed exposure to non-ionizing radiation.  

The examiner must provide the rationale for all opinions expressed.  

5.  The AOJ should also undertake any other indicated development, to include obtaining a VA examination for the Veteran's claim for service connection for gout if warranted by the development.    

 6.  Finally, the AOJ should readjudicate the issues on appeal.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).




      (CONTINUED ON NEXT PAGE)
This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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