Citation Nr: 9926042 Decision Date: 09/13/99 Archive Date: 09/21/99 DOCKET NO. 98-06 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for the residuals of an eye injury. 2. Whether new and material evidence has been received to reopen a claim for service connection for the residuals of a back injury. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Reichelderfer INTRODUCTION The veteran served on active duty form July 1944 to June 1946. This appeal arises from a December 1997 rating decision of the Montgomery, Alabama, Regional Office (RO). FINDINGS OF FACT 1. A September 1993 rating decision denied service connection for the residuals of an eye injury and the residuals of a back injury. 2. The evidence received subsequent to the September 1993 decision is not new and material. CONCLUSIONS OF LAW 1. The September 1993 rating decision is final. Evidence received subsequent to that decision is not new and material, and does not serve to reopen the claim for service connection for the residuals of an eye injury. 38 U.S.C.A. § 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (1998). 2. The September 1993 rating decision is final. Evidence received subsequent to that decision is not new and material, and does not serve to reopen the claim for service connection for the residuals of a back injury. 38 U.S.C.A. § 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a rating decision in September 1993, service connection for the residuals of an eye injury and the residuals of a back injury was denied. The veteran was advised of this decision in a letter to him, also dated in September 1993. Prior decisions of the RO are final, but they may be reopened upon the receipt of evidence which is both new and material. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). New and material evidence means evidence not previously submitted to agency decision makers 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) (1998). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the veteran's claim on any basis. Evans v. Brown, 9 Vet.App. 273 (1996). Since the RO's September 1993 decision is a final determination and was the last decision to address the issues of service connection for the residuals of an eye injury and service connection for the residuals of a back injury, the evidence that is considered to determine whether new and material evidence has been received is the evidence that has been received following that decision. Residual of eye injury The report of a VA visual examination, dated in August 1993 but received at the RO subsequent to the September 1993 rating, notes that the veteran gave a history of diesel fuel in the right eye. The diagnoses were myopia, astigmatism, presbyopia, visual field defect, and ocular hypertension. This examination report is new since it was not previously of record. However, it does not show that any current eye disorder is related to service or the claimed diesel fuel injury to the right eye during service. Accordingly, the examination report is not material. The veteran submitted copies of private chiropractic treatment records. These records are new in the sense that they were not previously of record. However, they are not related to the veteran's eyes and are thus not material. The veteran presented testimony at a personal hearing at the RO in May 1998. He testified that he was hit in the eyes and got fuel in them, and was placed in sick bay aboard ship for three nights. He also indicated that an eye defect was found at the time he was being processed for discharge but that it was not completely evaluated since he did not want to wait to be discharged. Additionally, he testified that immediately after service he had problems obtaining a driver's license and had problems with an employment physical due to his eyes. This testimony is new in the sense that it was not previously of record. As a lay person, the veteran is competent to testify as to what he experienced in service. However, he is not competent to offer the medical opinion that his post service eye problems are related to the claimed eye injury incident in service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, his testimony is not material. The evidence that has been received since the last disallowance of the veteran's claim is not material to the issue of service connection for the residuals of an eye injury. Either alone or in conjunction with the evidence previously of record, the received evidence is not so significant that it must be considered to fairly decide the merits of the claim. Therefore, the evidence is not new and material. 38 C.F.R. § 3.156(a) (1998). New and material evidence has not been received and the claim for service connection for the residuals of an eye injury is not reopened. 38 U.S.C.A. § 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (1998). Residuals of back injury The report of a VA visual examination, dated in August 1993 but received by the RO subsequent to the September 1993 rating, does not provide any findings related to the back. Therefore, while this report may be new since it was not previously of record, is not material since it is not related to the veteran's back. The veteran submitted copies of private chiropractic treatment records. These records are new in the sense that they were not previously of record. However, these records do not show that the veteran's current back problems are related to service or an injury in service. Accordingly, these records are not material. The veteran presented testimony at a personal hearing at the RO in May 1998. He testified that he injured his back by being knocked down at the same time he suffered his claimed eye injury. He indicated that his back bothered him following service. This testimony is new in the sense that it was not previously of record. As a lay person, the veteran is competent to testify as to what he experienced in service. However, he is not competent to offer the medical opinion that his post service back problems are related to the claimed injury incident in service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, his testimony is not material to the issue of service connection for the residuals of a back injury. The evidence that has been received since the last disallowance of the veteran's claim is not material to the issue of service connection for the residuals of a back injury. Either alone or in conjunction with the evidence previously of record, the received evidence is not so significant that it must be considered to fairly decide the merits of the claim. Therefore, the evidence is not new and material. 38 C.F.R. § 3.156(a) (1998). New and material evidence has not been received and the claim for service connection for the residuals of a back injury is not reopened. 38 U.S.C.A. § 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (1998). ORDER 1. New and material evidence has not been received and the claim for service connection for the residuals of an eye injury is not reopened. 2. New and material evidence has not been received and the claim for service connection for the residuals of a back injury is not reopened. JACK W. BLASINGAME Member, Board of Veterans' Appeals