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