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16-52 481
16-52 481
| Board of Vet. App. | Sep 18, 2017
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Background

  • Veteran served on active duty from April 1963 to April 1965.
  • In May 2014, the Veteran filed a claim alleging loss of his left eye; he contends the loss resulted from a VA referral to Hamilton Eye Institute.
  • The Veteran’s claim was framed as one under 38 U.S.C. § 1151 (VA-caused injury), not as service connection based on in-service events or etiological relation to service.
  • The RO issued a February 2015 rating decision addressing entitlement to service connection for the left eye; an April 2016 SOC likewise addressed service connection only.
  • The Board found the Veteran raised no specific allegation of error as to the RO decision on service connection and dismissed the appeal for lack of allegation of specific error; the Board remanded the separate § 1151 claim because an SOC had not yet been issued after the March 2017 denial and subsequent NOD.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Entitlement to service connection for left eye disability Veteran did not argue service connection; he claims VA referral caused the injury AOJ and Board: no specific allegation of error or factual/legal challenge to the service-connection determination Appeal dismissed for failure to allege specific error (Board lacks jurisdiction to review)
Entitlement to compensation under 38 U.S.C. § 1151 for left eye disability Veteran asserts left eye loss resulted from VA referral (i.e., § 1151 claim) AOJ issued a March 2017 denial but had not completed appellate development (no SOC issued on §1151 before NOD processing) REMANDED to AOJ to issue an SOC and allow the Veteran opportunity to perfect an appeal on the §1151 claim

Key Cases Cited

  • Manlincon v. West, 12 Vet. App. 238 (1999) (SOC requirement when RO takes a new adverse action after a claim is pending)
  • Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence and argument after remand; remanded claims must be processed expeditiously)
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Case Details

Case Name: 16-52 481
Court Name: Board of Veterans' Appeals
Date Published: Sep 18, 2017
Docket Number: 16-52 481
Court Abbreviation: Board of Vet. App.