Citation Nr: 0811807 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-28 709A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left eye disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board acknowledges that the veteran also presented a notice of disagreement with the May 2003 rating decision, which held that compensable disability rating was not warranted for the veteran's service-connected status post- operative, right eye pterygium. By means of a May 2007 statement of the case and an August 2007 rating decision, the RO held that the veteran's right eye disability warranted a 10 percent disability rating. The record is absent any evidence that the veteran has perfected an appeal with respect to the issue of entitlement to an increased rating for a right eye disability. Accordingly, this matter is not before the Board. In February 2008, the veteran presented testimony before the undersigned Veterans Law Judge at the RO. The Board notes that the May 2003 rating decision held that service connection was not warranted for a left eye disorder as due to head and eye trauma. The record indicates, however, that the matter of entitlement to service connection for a left eye disorder was previously addressed by means of an April 1975 rating decision. Before the Board may consider the merits of a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. "[T]he Board does not have jurisdiction to consider a claim which [has been] previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Furthermore, if the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Accordingly, the matter appropriately before the Board is whether new and material evidence has been presented to reopen the previously denied claim for service connection for a left eye disorder. The issue of entitlement to service connection for a left eye disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed April 1975 rating decision denied service connection for a left eye disorder. The RO held that the veteran's left eye disorder was a constitutional/developmental abnormality and not a disability under the law. 2. Evidence received since the April 1975 rating decision includes evidence not of record at the time of that decision that tends to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for a left eye disorder. 38 U.S.C.A. §§ 5107, 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Inasmuch as the determination below constitutes a full grant of that portion of the claim that is being addressed, there is no reason to belabor the impact of the VCAA on this matter. Notably, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. A claim on which there is a final decision, however, may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective for all claims to reopen filed on or after August 29, 2001. The instant claim to reopen was filed after that date (in April 2002), and the new definition applies. "New" evidence means existing 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. 38 C.F.R. § 3.156(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In the case at hand, the veteran's service medical records demonstrate complaints of blurred vision in the left eye. The veteran's August 1965 enlistment examination indicated left eye vision to be 20/100. In September 1965, it was determined that the veteran had amblyopia exanopsia due to high myperopia and small angle stratismus. At that time, his left eye vision was 20/200. In November 1966, left eye vision was measured to be 20/100. In August 1968, eyesight in the left eye was measured at 20/200. The veteran's August 1968 discharge examination indicated left eye vision to be 20/20. A post-service January 1975 VA examination report indicated that the veteran's left eye vision was 20/200, with best correction. The veteran was diagnosed as having left eye developmental amblyopia. In April 1975, RO held that service connection was not warranted for a left eye disorder because it was a constitutional/ developmental abnormality and not a disability under the law. The veteran did not appeal the rating decision and it became final. In April 1999, the veteran was afforded an additional VA examination. Left eye far uncorrected vision was 20/400 and far corrected vision was 20/200. Near uncorrected vision was 20/400 and near corrected vision was 20/300. The cornea, deep anterior chamber, and lens were clear in the left eye. Upon funduscopic examination, cup to disc ration was 0.2. There was good full view reflex; however, there was a pigmentary disturbance in the inferior temporal macula. The veteran was diagnosed as having left eye hyperopia, with probable ambiopia. There was also pigmentary maculopathy, probably due to an episode of central serous choroidopathy. The examiner opined that the veteran's left eye decreased vision was most likely due to ambiopia. The veteran's claim was received in April 2002. Accompanying VA medical records indicate that the veteran had been diagnosed as having left eye visual impairment (20/400) due to an unknown etiology with afferent papillary defect and color deficient on tritan axis. In July 2002, the veteran was afforded a VA examination; however, the claims folder and VA treatment records were not available for review. Physical examination revealed that the veteran was able to count fingers at three feet. Near vision was 20/800. Pupillary examination demonstrated hippus in both eyes, without efferent papillary defect. Visual field testing was impossible to conduct in the left eye due to the significant reduction in vision. Slit-lamp examination demonstrated normal conjunctivae. Left eye cornea was clear. Due to his reduction in vision the veteran was unable to differentiate colors. Fundus examination revealed a dull focal reflex in the left eye and pigment epithelial mottling in the temporal macula without associated drusen, subretinal fluid or hemorrhage. Cup to disc ration was 0.1. There was peripapillary atrophy around the optic disc. The veteran was diagnosed as having reduced visual acuity in the left eye of an unknown etiology. The eye examination did not demonstrate any apparent pathology consistent with the level of visual acuity in the left eye. The examiner was unable to explain the reduction in vision since April 2002 . In December 2002, he was afforded an additional VA examination and the examiner was able to review the claims folder. Physical examination revealed that the veteran was able to count fingers at 10 feet. The examiner was unable to test confrontation visual field in the left eye due to the significant reduction in vision. Cup to disc ration was 0.15. Retinal vessels and far periphery were normal. Examination of the left macula reveled a dull reflex and retinal pigment epithelia mottling in the temporal macula, off fovea. The examiner's impression as reduced vision in the left eye, etiology unclear. He noted that previous records indicated the presence of amblyopia in the left eye; however, it was unclear why the veteran's visual acuity had decreased in the past 20 to 30 years. He opined that it was possible that the veteran's current visual acuity in the left eye had a functional origin and that an MRI orbit and head should be conducted to rule out orbital/cranial pathology. A January 2003 MRI report demonstrated prominent sulci and ventricles; cisterns were intact. There was no midline shift to hydrocephalus. There was no evidence of acute infarction, intraparenchymal mass, or extra-axial fluid collection. Visualized paranasal sinuses and mastoid air cells. Orbit indicated normal globes and optic pathway. Intracoronal or extracoronal mass or soft tissue abnormality. The impression was normal orbit contents and optic pathway. In a May 2003 addendum, the examiner indicated that he had reviewed the record and reasoned that given the presence of impaired visual acuity upon entry service, the veteran's variability of visual acuity in the left eye during service, and the lack of evidence of pathology in the left eye, it was his opinion that the veteran's impaired vision in the left eye was neither caused nor aggravated by his medical service. In his November 2003 notice of disagreement, the veteran alleged that he entered service with excellent vision. He submitted that he sustained shrapnel injuries to his face and right eye in December 1966 and that his current left eye blindness was due to head trauma. The veteran presented for a VA examination in June 2007. Distance vision, without correction and with refraction, was hand motion. There was mild dermatochalasia. Motility was full without deviation. Pupils were normal, without papillary defect. The veteran was unable to see color plates on the left. Lenses demonstrated early nuclear sclerotic cataracts. The left cornea was normal. Cup to disc ration was 0.2. There was a presence of a few small collapsed pigment epithelial defects. The veteran was diagnosed as having a dramatic loss of left eye central peripheral vision, etiology unclear, as evidenced by pigmentary changes in the macular of both eyes. The pigmentary changes, however, did not explain the severe vision loss on the left side. The veteran has testified that his current left eye disorder began during his period of service and has continued to worsen since his discharge from service. His symptoms include eye pain and decreased vision. He attributes his current disorder either to his in-service surgeries or the excessive radiation he was exposed to in Vietnam. In light of the aforementioned medical evidence of a current left eye disorder that has not been attributed to either a constitutional and/or developmental abnormality and the veteran's statements that he has experienced a chronic left eye disorder since his discharge from military service, the Board finds that this evidence is neither cumulative nor redundant of the evidence previously of record. Moreover, the new evidence raises a reasonable possibility of substantiating the veteran' claim. The Board notes that, for the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, new and material evidence has been received and the claim is reopened. ORDER The appeal to reopen a claim of service connection for a left eye disorder is granted. REMAND The Board notes that the VCAA and the regulations implementing it are applicable to the reopened claim of service connection for a left eye disorder. The Board is of the opinion that further development of the record is required to comply with VA's duty to assist the veteran in the development of the facts pertinent to his claim. The Board finds that the veteran should be afforded an additional VA examination in order to secure an opinion as to the relationship, if any, between his current left eye disorder and the veteran's military service. See 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA examination to determine the etiology of his current disorder left eye disorder. All indicated tests should be accomplished. The claims folder must be made available to the examiner prior to the examination. The VA examiner should review the claims folder and provide an opinion as to whether it is at least as likely as not that the veteran's left eye disorder is causally related to his period of active service or any incident therein, including shrapnel injury to the head and right eye. The examiner should also provide an opinion as to whether it is at least as likely as not that the veteran's left eye disorder has been aggravated by the veteran's service-connected right eye disability. The report of examination should include a complete rationale for all opinions rendered. 2. Then, the RO should readjudicate the issue on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal remains denied, the RO should issue to the veteran and his representative a Supplemental Statement of the Case and afford them the appropriate opportunity for response thereto. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs