Citation Nr: 1124113 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-47 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to June 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been received to reopen the claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The RO denied reopening the claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye in a May 1989 rating decision. The Veteran was notified of this decision and of his appellate rights. He did not appeal the decision. 3. Since the May 1989 rating decision, which denied reopening the claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye, evidence that relates to an unestablished fact necessary to substantiate the claim has not been presented or secured. CONCLUSION OF LAW The May 1989 rating decision, which denied reopening the claim for service connection fixation of pupil and probable retro bulbar or optic neuritis of the left eye is final, and evidence received since that decision is not new and material. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156(a), 20.1103 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In regard to the Veteran's claim for service connection, the Board finds that the VCAA notice requirements have been satisfied by the December 2008 letter. In the December 2008 letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court established requirements regarding the VCAA notice and reopening claims. The Court held that the VCAA notice must include the bases for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). The Veteran has been apprised of the information necessary to reopen his claim on appeal as well as the basis of the prior final denial in the December 2008 VCAA letter. In addition to the foregoing analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claim is being denied, any such effective date questions are moot. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the Veteran's service treatment records and private medical records from January 1988 to March 1988. VA has not provided the Veteran with an examination in connection with his claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye; however, the Board finds that VA was not under an obligation to have the Veteran examined for his claim. The Veteran has not brought forth new and material evidence to reopen the claim. 38 C.F.R. § 3.159(c)(4)(iii) states that paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured. For these reasons, the Board finds that VA was not under an obligation to provide an examination in connection with his claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. II. Decision Applicable Laws and Regulations New and Material Pursuant to 38 U.S.C.A. § 7105(c), a decision by the RO may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. The exception to this rule is described under 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the claimant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the United States Court of Appeals for Veterans Claims (Court) indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). 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 clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2010). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990 The Board notes that the RO originally denied the Veteran's claim for service connection for a left eye injury in December 1976. The Veteran alleged in his August 1976 claim that a foreign object entered in his left eye while riding the bus from the Armed Forces examination station in Dallas, Texas, to Fort Sill, Oklahoma. Upon entry into service, clinical evaluation of the Veteran's eyes, pupils, ophthalmoscopic, and ocular motility, were all normal, as reflected on the May 1976 Regular Army (AR) enlistment examination. However, two days later, a Medical Board examination noted abnormalities associated with the Veteran's eyes, ophthalmoscopic, and pupils. The physician noted that the Veteran was unable to read with the left eye, and his left pupil mid point was non-reactive. He was diagnosed with no reactivity in the left pupil and decreased visual acuity. In the notes section of the examination report, the Veteran again explained that on a bus to the airport, he got something in his left eye, which has resulted in him not being able to see as well prior to the incident. However, in a May 1976 narrative summary, it was noted that a civilian eye doctor had informed the Veteran in April 1976 that his left pupil was larger than the right, and he admitted to a military physician that he may have possibly been hit in the eye by a baseball during his childhood. The Medical Board determined that the Veteran should be processed for separation because he failed to meet the medical fitness standards under paragraph 5-9, AR 635-200. It was concluded that the eye disability existed prior to service (EPTS) and was not aggravated by service. See the May 1976 Medical Board Proceedings report. Based upon the Veteran's service treatment records, specifically, the May 1976 Medical Board report, the RO denied service connection for a left eye injury as it was determined to have existed prior to service and not aggravated during his military time. The RO's determination in May 1989 was predicated on the fact that the Veteran failed to provide new and material evidence to substantiate his claim that his left eye disorder was incurred in or aggravated during his military service. At the time of the May 1989 rating decision, which denied reopening the claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye, the evidence of record consisted of the Veteran's service treatment records, a copy of his DD Form 214, his November 1981 formal application for compensation benefits, and private medical records from January 1988 to March 1988. As mentioned above, the Veteran was processed for separation in May 1976 after determining that there was decreased visual acuity and no reactivity to light of the left pupil. These deficiencies rendered him unable to meet the medical fitness standards. The Medical Board determined that the left eye disorder existed prior to service and was not aggravated by service. After separation from service, private treatment records reflect treatment and continuing complaints regarding his left eye. In January 1988, a private medical record notes the Veteran's diminution of vision. He was diagnosed with probable retro-bulbar neuritis or optic neuritis on the left and the physician noted that "whether this is an isolated event or part of a greater demyelinating picture remains to be seen." The Veteran returned for a follow-up visit in February 1988 with not much improvement of the visual acuity in the left eye. The physician noted that the left eye pupil was very poorly reactive to light and confrontational testing demonstrated visual scotoma. In a subsequent follow-up visit in March 1988, the treatment record noted that the Veteran's vision had improved with the use of fairly high doses of Prednisone. The RO acknowledged the new private treatment records but determined that the Veteran failed to submit new and material evidence showing that his left eye disability was incurred in or aggravated during his military service. The Veteran was notified of the denial in a June 1989 letter, including his appellate rights, and he did not appeal the decision. Thus, it is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Based upon the evidence of record, the Board finds that the Veteran has not presented evidence since the May 1989 rating decision which relates to an unestablished fact necessary to substantiate the claim of service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye. Since the May 1989 rating decision, the evidence received into the record includes the Veteran's formal claim for service connection for a left eye disorder dated December 2008, his April 2009 notice of disagreement (NOD), and his substantive appeal received by the RO in December 2009. As of this date, the Veteran has not submitted any medical evidence showing that his fixation of pupil and probable retro bulbar or optic neuritis of the left eye was incurred in or aggravated by his military service. The only evidence submitted are the Veteran's statements requesting reopening this claim. His statements are essentially cumulative of his previously submitted statements and therefore are not new and material. As such, no evidence has been submitted which has not been previously considered and which relates to an unestablished fact necessary to substantiate the claim. The Board finds that the evidence received in conjunction with the claim to reopen is not new and material, and does not serve to reopen the claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Having found that the evidence is not new and material, no further adjudication of this claim is warranted. See Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). ORDER New and material evidence not having been presented, the application to reopen a claim for service connection for fixation of pupil and probable retro bulbar or optic neuritis of the left eye, is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs