Citation Nr: 9923125 Decision Date: 08/16/99 Archive Date: 08/26/99 DOCKET NO. 97-06 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence sufficient to warrant reopening a claim of entitlement to service connection for an eye disorder, hereditary retinal degeneration, has been presented. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Esq. ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had service from August 1964 to July 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the veteran's claim of entitlement to service connection for a bilateral eye disorder, characterized as retinal degeneration, was initially denied by rating decision dated May 19, 1966. By rating decision dated in May 1996, the RO found that no new and material evidence sufficient to reopen the veteran's claim had been presented. In a decision dated in August 1997, the Board denied reopening the veteran's claim. The veteran appealed that determination to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). In a Memorandum Decision dated October 23, 1998, the Court vacated the August 1997 decision with respect to the Board's denial of reopening the veteran's claim, and remanded the case for further adjudication consistent with the Court's decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The veteran and his attorney have since been provided with notice of the above and an opportunity to respond with additional argument in support of the claim. FINDINGS OF FACT 1. In a rating decision dated in May 1966, the RO denied entitlement to service connection for a bilateral eye disorder, hereditary retinal degeneration, and notified the veteran of that determination; he did not appeal. 2. The evidence received subsequent to the May 1966 rating decision is not new; is not competent; does not bear directly and substantially upon the specific matter under consideration; and/or is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The May 1966 rating decision that denied entitlement to service connection for a bilateral eye disorder is final. 38 U.S.C. § 4005(c) (1964) [38 U.S.C.A. § 7105(c) (West 1991)]; 38 C.F.R. § 19.153 (1966) [38 C.F.R. § 20.1103 (1998)]. 2. No new and material evidence has been presented to warrant reopening the claim of entitlement to service connection for a bilateral eye disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Reports of medical examination and history dated in August 1964, at the time of the veteran's induction into service, include notation that he wore glasses. His uncorrected vision was 20/400 bilaterally, corrected to 20/40 in the right eye and 20/50 in the left eye; the diagnosis was refractive error. Externally his eyes were evaluated as normal. The report of medical examination includes a physical profile report, which is divided into six categories, with the "E" representing "eyes." Para. 9- 3(b)(1)-(6), Army Regulation (AR) 40-501, Change 35 (Feb. 9, 1987). See also Odiorne v. Principi, 3 Vet.App. 456, 457 (1992); Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991). The veteran was assigned a "2" under the "eyes" category. There is also a notation on the examination report that the veteran failed the "F-L test" pertaining to color vision. A service medical record entry dated in August 1964 reflects that the veteran was referred to the eye clinic. When he was seen in September 1964, the veteran complained of having had decreased visual acuity all his life and that he felt it was somewhat worse currently. He gave a history of a sister who had poor vision that was not correctable with glasses. External examination was normal. The examiner noted pigmentary "peppering" in both maculae, stated to be probable old choroiditis. Corrected visual acuity was 20/40 in the right eye and 20/50 in the left eye. The diagnoses were evidence of old choroiditis in each eye (activity could not be determined), and compound myopic astigmatism. The examiner indicated that the veteran should have repeat refractions taken at intervals of six months to one year to determine if his visual acuity was decreasing. In November 1964 the veteran was allowed to wear sunglasses in class pending the receipt of other lenses. A service medical record dated in May 1965 reflects that the veteran continued to have problems with poor visual acuity. Examination at that time revealed macular mottling with pigment dispersion and granularity without foveal reflex bilaterally. The peripheral retinae had a gliotic sheen without atrophy. Ocular motility was normal. The impression was familial retinal degeneration with resulting uncorrectable visual acuity and impairment. The examining physician recommended follow-up within four months to rule out progression. A Physical Profile Record noted that the veteran had poor reading vision due to an inherited tendency, poor color vision and poor night vision; his physical profile for the eyes was listed as "3" on that report. The veteran was restricted from duties requiring critical visual functions, color discrimination and duty requiring unsupervised activity in dim light. A June 1965 report of Medical Board Proceeding includes a diagnosis of hereditary, familial degeneration of the retinae, with resulting moderate impairment of visual acuity, severe impairment of color vision and poor dark adaptation, bilaterally. Corrected visual acuity was 20/40-3 in the right eye and 20/40-2 in the left eye. Attached clinical abstracts include a positive family history: The veteran reported that he had had problems since age six and further stated that his sister had severe visual defects not benefited by treatment. The Medical Board found that the veteran's eye problems had existed prior to service, had originated in about 1950, and were not aggravated by service. The Medical Board concluded that the veteran's eye disorder was incapacitating and that it had not stabilized, and that he was thus unfit for continued medical service. He was discharged based on his eye disability. The June 1965 report of physical examination at separation showed right eye uncorrected vision of 20/300, correctable to 20/40-3, and left eye uncorrected vision of 20/400, correctable to 20/40- 2. It was noted that the veteran had abnormal night vision by history. Bilateral retinal degeneration was noted. His physical profile for the eyes was listed as "4." In March 1966, the RO received the veteran's initial claim for service connection for a bilateral eye disorder, based on aggravation. By a rating decision dated in May 1966, the RO denied service connection for bilateral retinal degeneration characterized as a constitutional or developmental abnormality, not considered a disability under the law, and not considered to have been aggravated due to active military service. The RO specified that the manifestation in service of the veteran's eye problems reflected no acceleration and was considered to be due to the inherent trait of the condition. By a letter also dated in May 1966, the RO notified the veteran of that decision. He did not appeal. The veteran again sought service connection for his eye disability in November 1973. In support of his claim he submitted additional medical evidence. Received was a report of medical history and evaluation completed in July 1973 in connection with entrance into Loma Linda University, at which time the veteran complained of eye trouble. The examining physician noted poor vision and that the peripheral field was employed. Ophthalmoscopic examination revealed macular degeneration. It was concluded that the veteran had no significant distant vision and unable to read anything except exceptionally large type. Also received was a report of ophthalmologic examination dated in September 1973, which includes a notation of normal visual fields and external ocular status, with evidence of macular degeneration on the fundi. The examiner concluded that the veteran had lost his central vision and that his visual prognosis was poor. By a letter dated in February 1974, the RO informed the veteran of the need for new and material evidence to reopen his claim and that, as the evidence submitted was not new and material, the claim remained in disallowed status. In February 1974, the RO received a letter from R.S., M.D., who reported having initially evaluated the veteran in October 1970, at which time his visual acuity was 20/70 bilaterally. Dr. R.S. stated that current examination revealed extensive macular degeneration that had progressed to a point where the veteran was considered permanently legally blind. In January 1980, the veteran applied for pension, aid and attendance and housebound benefits based on his bilateral eye disability. Attached was a statement dated in August 1979 from M.H., M.D. Dr. M.H. noted that the veteran was being seen for an annual examination as part of the Visual Impairment Service Program. External examination was normal, but internal examination revealed pigment deposits involving the macular region of both eyes. Visual acuity was 1/400, bilaterally uncorrectable with glasses. The report notes that the veteran's visual impairment began in 1965 and that he was presently unable to read. The conclusion was bilateral macular degeneration, cause not determined, with defective vision resulting. By decision dated in March 1980, the RO granted an award of special monthly pension based on the need for regular aid and attendance due to bilateral macular degeneration, considered permanently and totally disabling. In April 1996, the RO received correspondence in which the veteran expressed a desire to pursue a claim of entitlement to service connection for his eye problem; he asserted that his current diagnosis was retinitis pigmentosa in addition to macular degeneration. He presented arguments to the effect that he had no eye problems other than the use of prescription eyeglasses for driving prior to service and then stated that during his off-duty time in the military he spent a lot of time in the intense sunlight. He argued that such exposure caused or aggravated his eye problems. The claims file contains an opinion from the Acting Director of the VA Compensation and Pension Service, dated in October 1996. The veteran's claims file was reviewed in conjunction with two precedent opinions of the General Counsel of the VA, VAOPGCPREC 1-90 (March 16, 1990) and VAOPGCPREC 82-90 (July 18, 1990), previously issued as VAOPGCPREC 1-85 (March 5, 1985). The conclusion was that the available evidence did not indicate aggravation of the veteran's macular degeneration during service, or in the presumptive period following discharge. Laws and Regulations Pertinent to Service Connection Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C.A. §§ 1111, 1132 (West 1991), 38 C.F.R. §§ 3.303(c), 3.304(b) (1998). Service connection means, essentially, that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was contracted in line of duty coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). Congenital or developmental defects, such as refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9., 4.127 (1998); Beno v. Principi, 3 Vet. App. 439 (1992); see generally, Winn v. Brown, 8 Vet. App. 510 (1996) (upholding Secretary's authority to exclude certain conditions from consideration as disabilities under 38 C.F.R. § 4.9). VAOPGCPREC 1-90 (March 16, 1990) held that service connection may be established pursuant to 38 C.F.R. § 3.309(a) when a hereditary or familial disease first becomes manifest to a compensable degree within the presumptive period following discharge from service provided the rebuttable presumption provisions of 38 C.F.R. § 3.307 (1998) are satisfied. Pertinent chronic diseases subject to presumptive service connection under 38 C.F.R. §§ 3.307, 3.309 (1998) do not include any eye diseases. VAOPGCPREC 67-90 (July 18, 1990) (a re-issue of General Counsel Opinion 8-88 (September 29, 1988)) dealt with the question of whether a hereditary disease under 38 C.F.R. § 3.303(c) always rebuts the presumption of soundness found in 38 U.S.C.A. §§ 1111, 1132. In discussing the question, the VA General Counsel addressed retinitis pigmentosa, a condition accepted by competent medical authority as hereditary in origin. The holding was that service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In VAOPGCPREC 82-90 (July 18, 1990), the question presented was: Under what circumstances, if any, may service- connection be granted for disorders of congenital or developmental origin? The opinion focused on the distinction between a disease and a defect and held that service- connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service within the meaning of VA law and regulations. VA regulations provide that a pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1998). The Court has found that this presumption of aggravation applies where there is a worsening of the disability regardless of whether the degree of worsening was enough to warrant compensation; and that the veteran need not show a specific link between his in-service activity and the deterioration of his pre-service disability. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991); Hensley v. Brown, 5 Vet. App. 163 (1993). 38 C.F.R. § 3.306(b) (1998) provides that, as to veterans of wartime service, "[c]lear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation" during service. It is the Secretary's burden to rebut the presumption of in-service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). Initial Matters The veteran's attorney has argued that, in light of the Court's decision to remand this case to the Board for further adjudication consistent with Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), due process demands remand to the RO "to readjudicate the question of new and material evidence under the correct legal standard." First, the Board notes that the Court's October 1998 Memorandum Decision sets out that the matter "must be returned to the Board for a determination of whether the evidence presented by the appellant 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." The Court, having considered the impact of Hodge, did not mandate remand to the RO for initial consideration of Hodge. When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether an appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). In instances where due process may be compromised and the veteran may be prejudiced, remand is necessary. The RO, in this case, considered essentially the same question, that is, whether new and material evidence had been received in connection with the veteran's claim. The Hodge holding, with respect to clarification of the standard used to determine materiality, is set out as being broader and more favorable to the veteran than the standard used by the RO in the past; the veteran's attorney concurs that the Hodge decision, and the precise language of 38 C.F.R. § 3.156 (1998) are more favorable. Thus, the Board herein gives greater consideration to the veteran's claim than the RO. Such consideration is therefore not prejudicial to the veteran. Moreover, in this case, the veteran and his attorney have been given notice of the Court's holding in Hodge v. West, and have been afforded ample opportunity to present evidence and argument in support of his claim with reference to the Hodge holding. See Kutscherousky v. West, 12 Vet. App. 369 (1999). New and Material Analysis In a rating decision dated in May 1966, the RO denied entitlement to service connection for a bilateral eye disorder, hereditary retinal degeneration, and notified the veteran of that determination; he did not appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (1998). Once a denial of a claim of service connection has become final, it cannot subsequently be reopened unless new and material evidence has been presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New and material evidence is defined as evidence not previously submitted to agency decisionmakers 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. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Id. at 1363. For the limited purpose of determining whether to reopen a claim, the credibility of the evidence is to be presumed; however, this presumption does not apply in the adjudication that follows reopening. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether to reopen previously and finally denied claims, a three-step analysis was recently announced by the Court. Elkins v. West, 12 Vet. App. 209 (1999). Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999). In this case, evidence submitted subsequent to the RO's final May 1966 decision includes statements from the veteran and private and VA medical evidence. Also, since the issuance of the May 1966 decision, several relevant precedent opinions of the VA General Counsel have been issued. In regard to the veteran's own statements, he has re-iterated his contention that his vision problems were aggravated by service. Such recounting is merely repetitive and cumulative of the arguments presented in connection with his initial claim. See Godwin v. Derwinski, 1 Vet. App. 419, 424 (1991). The veteran has also presented arguments with respect to an additional diagnosis, stating that he now has retinitis pigmentosa in addition to previously considered eye diagnoses. However, the competent evidence of record is completely negative for any diagnosis of retinitis pigmentosa and the record does not reflect that the veteran possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Court, in Moray v. Brown, 5 Vet. App. 211, 214 (1993), extended the principal of Grottveit v. Brown, 5 Vet. App. 91 (1993), to hold that if lay assertions as to medical issues will not suffice initially to establish a plausible, well grounded claim, under 38 U.S.C.A. § 5107(a), it necessarily follows that such assertions cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. The veteran's assertions as to an independent eye diagnosis are therefore insufficient to reopen his claim. To the extent that the veteran has further argued that his eye disorder did not pre-exist service, the Board again notes that he is not competent to establish that eye pathology did not exist prior to service; nor is he competent to provide an opinion as to the causation of any progression of his eye disorder. In and of themselves, his statements are thus not new and material and not sufficient to reopen the claim. See Espiritu, supra. In addition to the above the veteran and his representative have presented argument relevant to precedent opinions of the VA General Counsel issued subsequent to the RO's final decision in 1966. The holdings of those opinions have been set out above. As they are clearly new in that they did not exist at the time of the May 1966 rating decision, the question then becomes whether they are material. The Court has in the past held that a change in law can itself constitute new and material evidence. Akins v. Derwinski, 1 Vet. App 228, 230 (1991). In some circumstances a liberalizing law or regulation can serve as the basis for reopening a previously denied claim where such creates a new basis of entitlement to benefits. Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd 17 F. 3d 368 (Fed. Cir. 1994); but cf. Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998) (holding that a change in an evidentiary presumption does not constitute new and material evidence or a new basis for adjudication of the claim under Spencer). In this case, there is no question that the opinions in question provided precedent to consider whether a hereditary/familial condition has undergone aggravation during service, warranting service connection on such basis. It must be noted, however, that although the RO, in its notice of the May 1966 rating decision, termed the veteran's disorder hereditary and not a disability under law, the rating decision considered whether the condition had been aggravated in service and found that it had not. As the RO already applied the principal of aggravation and rejected it as a basis for the establishment of service connection, VAOPGCPREC 67-90 and 82-90 do not provide any new basis of entitlement to benefits for the veteran, in view of the particular facts of this case. In its denial, the RO clearly considered the evidence of progression during service, the Medical Board Proceedings determining that no aggravation had occurred, and the veteran's own statements relevant to aggravation. Had they not done so, VAOPGCPREC 67-90 and 82- 90, would provide a new basis of entitlement. Here, however, the opinions merely lend support to the theory upon which the RO proceeded in May 1966. In any case, the General Counsel opinions in question set out that in order to obtain service connection for a pre-existing hereditary disease, there must be evidence of in-service aggravation. Although "new" evidence, including competent medical evidence, has been added to the claims file, it is not material and not sufficient to reopen the veteran's claim. First, with respect to medical reports dated in July and September 1973; the letter from Dr. R.S., received in February 1974; and the statement dated in August 1979 from Dr. M.H., such merely confirm the fact that the veteran continues to have eye problems resulting in vision loss. Those reports do not speak to the basis for the denial of the veteran's claim. That is, none of that evidence contains an opinion that the changes in the veteran's eye disorder during service were not due to natural progression, or that the veteran has any eye disorder of service origin. The August 1979 report of VA examination does include a notation that the veteran's visual problems began in 1965; however, that appears to be based on a history provided by the veteran and not on review of relevant records. The Court has stated, "[a]n opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 5 Vet. App. 458, 461 (1993). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional comment by that examiner, does not constitute competent medical evidence). The additional medical evidence does show diagnoses of macular as opposed to retinal degeneration. In Ashford v. Brown, the Court stated that "[n]otwithstanding the nomenclature and varied etiology attributed to his disability, [the veteran's] 'lung condition,' by any name, remains the same; it is 'inextricably intertwined' with his previous claim for entitlement to service connection for a lung disorder." 10 Vet.App. 120, 123 (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991); (citing McGraw v. Brown, 7 Vet.App. 138, 142 (1994). The May 1966 rating decision in essence denied the veteran service connection for a degenerative eye disorder, resulting in vision loss. The additional medical evidence continues to identify an eye disability manifested by a loss of visual acuity caused by a degenerative process. What the additional evidence does not contain is competent medical evidence or opinion that the veteran's in-service eye disorder did not pre-exist service as defined under relevant VA laws and regulations, see 38 C.F.R. §§ 3.303(c), 3.304(b); VAOPGCPREC 1-90; VAOPGCPREC 67-90; VAOPGCPREC 82-90, or that such was subjected to a superimposed injury or disease or that such progressed beyond the normal disease process as a result of military service. The Board also notes the October 1996 opinion from the Acting Director of the VA Compensation and Pension Service, concluding that the available evidence did not indicate aggravation of the veteran's macular degeneration during service, or in the presumptive period following discharge. The Court has held that evidence unfavorable to the veteran's case may not "trigger a reopening" of the claim. Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). The Board notes the veteran's argument that his change in physical profile from an E2 to an E4 at service discharge is, in itself, sufficient evidence of aggravation. The Board does not dispute the change in the assigned physical profile; however, that evidence was considered by the RO in the initial denial. The veteran's remedy at that time was to appeal the decision. As he did not, the Board is now restricted to an analysis of whether the additional evidence presents a basis for reopening the claim. In May 1966, the RO considered all evidence then of record regarding the eye disorder, as well as the veteran's contention that his eye disorder had been aggravated in service. To date, no additional, competent evidence, showing that the veteran's eye disorder was aggravated in service has been received. Moreover, the Board, in its August 1997 decision, denied the claim of clear and unmistakable error (CUE) in the May 1966 decision. See 38 C.F.R. § 3.105(a) (1998). The Court upheld the Board's determination with respect to CUE. In sum, the evidence of record received subsequent to May 1966 is in part not new, as it is merely cumulative and repetitive of prior argument and/or is not competent evidence of in-service incurrence or aggravation. As such it is not so significant that it must be considered in order to fairly decide the merits of the claim. Absent submission of evidence both new and material to the question of whether the veteran's hereditary eye disorder was aggravated during service, or competent evidence of the service incurrence of some other eye disorder, his application to reopen his claim must be denied. 38 C.F.R. § 3.156(a). Thus, the May 1966 rating decision remains final. 38 U.S.C. § 4005(c) (1964) [38 U.S.C.A. § 7105(c) (West 1991 & Supp. 1999)]; 38 C.F.R. § 19.153 (1966) [38 C.F.R. § 20.1103 (1998)]. The Board recognizes that the Court, in Graves v. Brown, 9 Vet. App. 172 (1996), extended the 38 U.S.C.A. § 5103(a) (West 1991) duty to advise the claimant of evidence needed to complete his application, as discussed in Robinette v. Brown, 8 Vet.App. 69 (1995), to applications to reopen a claim through the presentation of new and material evidence. In this instance, the veteran has neither submitted nor identified evidence sufficient to warrant reopening the claim. ORDER The application to reopen a claim of entitlement to service connection for an eye disability is denied. JANE E. SHARP Member, Board of Veterans' Appeals