Citation Nr: 18160404
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-43 806
DATE:	December 27, 2018
ORDER
New and material evidence having been received, the claim of entitlement to service connection for an eye condition is reopened, and to this extent only, the appeal is granted.
New and material evidence having been received, the claim of entitlement to service connection for sarcoidosis (claimed as lung condition) is reopened, and to this extent only, the appeal is granted.
REMANDED
Entitlement to service connection for glaucoma (bilateral eye condition) is remanded.
Entitlement to service connection for sarcoidosis (claimed as lung condition) is remanded.
REFERRED
The issue of entitlement to Department of Veterans Affairs (VA) compensation pursuant to the provisions of 38 U.S.C. §  1151 has been raised by the record during a October 2017 Board of Veterans’ Appeals (Board) hearing, and elsewhere in the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  To the extent that the Veteran desires to file such a claim, he is advised that a complete claim on an application form prescribed by VA regulations is required.  38 C.F.R. § 3.155.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served in the United States Navy from June 1971 to February 1973.
This matter comes before the Board on appeal from an April 2012 rating decision of the VA Regional Office (RO) in Detroit, Michigan.
New and Material Evidence
In general, VA rating decisions that are not timely appealed are final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.302.  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108.  New evidence is defined as evidence not previously submitted to agency decisionmakers.  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).
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  VA may then proceed to the merits of the claim on the basis of all of the evidence of record.
When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  In Shade, the United States Court of Appeals for Veterans Claims (Court) 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 evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant’s claim on any basis.  See Evans v. Brown, 9 Vet. App. 273 (1996).
1. Whether new and material evidence has been received to reopen a claim of service connection for an eye condition
In December 2008, the RO denied service connection for an eye condition essentially based on a finding that the disability was not related to service.  The Veteran did not appeal this decision and it is final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
Since that time, relevant additional evidence suggests a nexus between currently diagnosed glaucoma and military service.  This evidence, evidence not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material.  38 C.F.R. § 3.156(a).  Thus, the claim is reopened.
As provided further below, additional development of the evidence is required, and the claim for service connection for an eye condition will therefore be remanded for additional development prior to readjudication.
2. Whether new and material evidence has been received to reopen a claim of service connection for sarcoidosis (claimed as lung condition)
In December 2008, the RO denied service connection for sarcoidosis (claimed as lung condition) essentially based on a finding that the disability was not related to service.  The Veteran did not appeal this decision and it is final.  See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
Since that time, relevant additional evidence suggests a nexus between currently diagnosed sarcoidosis and military service.  This evidence, evidence not previously submitted to decisionmakers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material.  38 C.F.R. § 3.156(a).  Thus, the claim is reopened.
As provided further below, additional development of the evidence is required, and the claim for service connection for a lung condition characterized as sarcoidosis will therefore be remanded for additional development prior to readjudication.
REASONS FOR REMAND
1. Entitlement to service connection for an eye condition is remanded.
The Veteran seeks service connection for a bilateral eye condition, which he asserts is related to service.  At an October 2017 Board hearing, the Veteran testified that he had a head injury in service; when he woke up, his vision was blurry for two or three days; and eventually his vision got better.  He stated that he was told that he was hit with the back end of a rifle butt.  Later during service, he noticed that his left eye would always be blurry and would water when he was on a ship.  He started wearing glasses after service; and he continued to have pain as he got older.  See also April 2008, September 2010 and February 2016 statements in support of claim, and a May 2011 correspondence.  In November 2014, the Veteran stated that he did not go to a doctor every day, and that he would try to take care of his condition himself.
The Veteran was afforded a VA examination in September 2008, which reflected a diagnosis of bilateral physiological cupping, bilateral refractive error with presbyopia; and right eye chorioretinal scarring.  The examiner did not provide an opinion regarding the etiology of the Veteran’s eye condition.
Also, since the September 2008 VA examination, the Veteran has been diagnosed with glaucoma.
Although the Board acknowledges the November 2018 private opinion that the Veteran’s glaucoma with eventual severe loss of vision was a progressive disorder more likely than not beginning in military service, it is unclear what is the basis of the opinion as the examiner does not identify any specific service treatment record supportive of this opinion. Thus, the rationale is inadequate in this case.
The Board finds that a new VA examination is warranted to determine the nature and etiology of the Veteran’s eye condition.
2. Entitlement to service connection for a lung condition is remanded.
The Veteran seeks service connection for a lung condition characterized as sarcoidosis, which he asserts is related to service.  At an October 2017 Board hearing, the Veteran testified that he had a chronic cough in service and his cough continued after service, and worsened in the 1980s, when he was diagnosed with sarcoidosis.  The Veteran also testified that he continued to have flares of his sarcoidosis, which he self-treated.
Although the Board acknowledges the November 2018 private opinion that the Veteran’s sarcoidosis more likely than not began during military service and was not diagnosed until later in its course, it is again, unclear as to the specific service treatment record that is supportive of his opinion regarding the onset of such disorder.  Thus, the rationale is inadequate in this case.
VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claims.  38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  The requirement that the evidence “indicates” that the Veteran’s disability “may” be associated with his service is a low threshold.  Id.  Thus, in light of the Veteran’s contentions and the record on appeal, a VA examination should be obtained to determine the probable etiology of the Veteran’s lung condition, to include whether the Veteran’s lung condition is related to service or to service-connected disabilities.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon, supra.
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s eye condition.  All necessary tests should be conducted.  The claims file should be made available to and be reviewed by the examiner in conjunction with the examination.
The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current eye condition, including glaucoma, manifested during, is otherwise causally or etiologically related to a period of active duty service.
The examiner should consider and discuss the following:
(a.) Service treatment records, which reflect that the Veteran complained of eye pain from August 1971, and burning, watery eyes from October 1971;
(b.) Post-service treatment records reflect diagnoses of bilateral physiological cupping, bilateral refractive error with presbyopia; and right eye chorioretinal scarring from September 2008; and a diagnosis of open angle glaucoma, severe with the right eye greater than the left eye from December 2016;
(c.) November 2018 private opinion that the Veteran’s glaucoma with eventual severe loss of vision was a progressive disorder more likely than not beginning in military service;
(d.) Veteran’s testimony and statements regarding his eye condition and his head injury in service;
In rendering the opinions, the examiner should consider the Veteran’s statements regarding the symptoms of his eye condition and his head injury in service to be competent and credible.
The examiner should provide a complete rationale for all opinions expressed and conclusions reached.
2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of the Veteran’s lung condition.  All necessary tests should be conducted.  The claims file should be made available to and be reviewed by the examiner in conjunction with the examination.
(a.) The examiner should address whether the Veteran has a current lung disability for VA purposes;
(b.) whether it is at least as likely as not (50 percent or greater likelihood) that any current lung disability manifested during service, that sarcoidosis was manifest to a compensable degree within one year of service, or that it, is otherwise causally or etiologically related to a period of active duty service.
The examiner should consider and discuss the following:
(a.) Service treatment records, which reflect that the Veteran complained of a cold; 
(b.) September 1984 private treatment records, which reflect a diagnosis of sarcoidosis; 
(c.) July 2015 VA treatment record; which reflects an opinion that the Veteran’s remote sarcoid diagnosis was questionable given the nature of his biopsy;
(d.) November 2018 private opinion that the Veteran’s sarcoidosis more likely than not began during military service and was not diagnosed until later in its course;
(e.) Veteran’s testimony and statements regarding his lung condition.
In rendering the opinions, the examiner should consider the Veteran’s statements regarding his lung condition to be competent and credible.
 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. Johnson, Associate Counsel 

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