Citation Nr: 1302274 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-38 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for bilateral eye disability (claimed as keratoconus) and, if so, whether the claim may be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to October 2002, when he retired. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision the RO denied service connection for keratoconus on the merits. A notice of disagreement was received in January 2009. The RO issued a statement of the case in August 2009 that confirmed the denial of service connection and determined that the Veteran had not submitted new evidence showing that a bilateral eye disability occurred in or was caused by service. However, the requirement of submitting new and material evidence to reopen a claim is a material legal issue the Board is required to address on appeal, regardless of the decision by the RO. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). As such, the issue is captioned as above. In May 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript has been associated with the claims file. That same day, the Veteran and his representative added additional evidence to the record with a waiver of initial consideration of the evidence by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In a November 2002 rating decision, the RO denied the Veteran's claim of service connection for a bilateral eye disability; the Veteran was informed of this action and apprised of his appellate rights, but did not file a timely appeal. 2. The evidence received since the November 2002 rating decision, is neither cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of service connection for a bilateral eye disability. 3. The Veteran has a bilateral eye disability that is etiologically related to an occurrence while serving during active duty. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a bilateral eye disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. A bilateral eye disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3,102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) imposes obligations on VA regarding its duties to notify and assist Veterans in developing claims for VA benefits. In this instance, there is no need to undertake any review of compliance with the VCAA and implementing regulations since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board (favorable determinations with respect to whether new and material evidence has been submitted and as to the merits of the service connection claim for bilateral eye disability). See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). It is anticipated that any VCAA notice deficiency will be remedied by the RO in the process of giving effect to the grant of service connection. The Veteran will have the opportunity to initiate an appeal from "downstream" issues such as the assignment of a rating and an effective date if he disagrees with such determinations, which will be made by the RO in giving effect to the Board's grant of service connection. Legal Criteria, Factual Background and Analysis At the outset, it is noted that the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Therefore, the Board will summarize the relevant evidence where appropriate. Petition to Reopen The Veteran's claim for service connection for bilateral eye disability was previously denied by a rating decision dated in November 2002. The Veteran was furnished notice of that determination and notice of appellate rights by letter dated that same month. He did not appeal that decision, nor did he submit new and material evidence within one year of notice of that decision; therefore it is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. Applicable law provides that a claim which is the subject of a prior final decision may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. New and material evidence means existing evidence not previously submitted to agency decision-makers. 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. 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). The United Stated Court of Appeals for Veterans Claims (Court) has held that the phrase raises a reasonable possibility of substantiating the claim must be viewed as enabling rather than precluding reopening. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). However, to reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The Board is not bound by the RO determination in the instant case that new and material evidence has not been received and it will make an independent determination in this regard. Jackson, 265 F.3d 1366. The Veteran seeks to reopen the claim of service connection for a bilateral eye disability first denied by the RO in November 2002 because, although there was a record of treatment in service for an eye injury, no permanent residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by evidence following service. Evidence of record at the time of the November 2002 final rating decision featured service treatment records, and a July 2002 pre-discharge VA (fee basis) eye examination. Evidence received subsequent to the November 2002 final decision includes VA outpatient treatment records, VA (fee basis) treatment reports of Dr. A.N.C., and most significantly a May 2010 medical nexus opinion by Dr. A.N.C. In the May 2010 letter, Dr. A.N.C. opined that it is as likely as not that the diagnosis of keratoconus was a result of chemical exposure or extreme exposure to sand and burning of oil fields, while the Veteran was on active duty. The Board finds that Dr, A.N.C.'s May 2010 letter is new evidence that relates to an unestablished fact necessary to substantiate the Veteran's claim. The new competent medical opinion indicates that the Veteran has the claimed disability and that a bilateral eye disability is related to active duty service. The credibility of this newly submitted evidence is to be presumed. See Justus, 3 Vet. App. 510. Therefore the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Service Connection Here, the request to reopen the claim subject to prior final denial involves an underlying claim of service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he currently has a bilateral eye disability (keratoconus) that was initially shown in service, but was diagnosed during service as a severe stigmatism in both eyes. He asserts that shortly after retirement from active duty, he was diagnosed (by a civilian eye doctor) with keratoconus, which had caused his vision problems for the last two years in service. On review, service treatment records reveal an April 1987 optometry clinic report wherein the Veteran complained that the last eye treatment he received was too strong. He was diagnosed with simple Hyperopia of both eyes. On March 1990 optometry clinic report, the Veteran complained that he needed new glasses because of blurriness. The diagnosis was compound Hyperopia astigmatism, both eyes. In an October 1994 emergency care and treatment report, the Veteran was seen for a foreign body in his left eye. He reported that he had gotten fiberglass insulation in his left eye two days earlier, and while working, the wind blew in his left eye and it started to hurt again. The diagnosis was corneal abrasion. In a December 1997 Report of Medical History the Veteran indicated that he had eye trouble. In a July 1999 optometry clinic report, the Veteran complained of blurry vision at a distance for the past three months. He also reported seeing flashes of light and hundreds of floaters. The diagnosis was compound hypermetropia astigmatism. In a February 2002 optometric examination report, the Veteran reported that his vision was constantly blurry, and occasionally his eye would burn, "water badly", and he had double vision. He reported that while stationed at an Air Force base he had temporary blindness. He stated that he was washing an aircraft in 1985 using a chemical solution, and two hours of using the solution caused temporary (72 hours) blindness. He stated that his eyes were flushed and bandaged. On July 2002 pre-discharge VA (fee basis) eye examination, the Veteran was diagnosed with Hyperopia, with astigmatism. It was noted that there was no residual damage from the reported 1985 incident. VA outpatient treatment records dated from March 2003 to September 2005 show the Veteran was treated and/or evaluated medically during that period. Those records show no complaints regarding the Veteran's eyes. In an April 2003 primary care note, examination of the eyes showed the pupils equal, round, and reactive to light and accommodation, and extraocular movements were intact. The sclera, and conjunctiva were clear. On March 2006 primary care outpatient report, the Veteran's assessment was keratoconus, refer to ophthalmology. On May 2006 VA outpatient ophthalmology clinic report, the Veteran presented for an evaluation of keratoconus that he reported had been diagnosed in December 2002. The assessment was keratoconus. At a July 2007 VA outpatient ophthalmology clinic follow-up visit, the Veteran reported that his job was mostly outdoors in the heat (construction) and his contact lens tend to dislocate or pop out when he gets sweat in his eyes. He believes the contact lens is not conducive to his lifestyle. The assessment was keratoconus, getting worse and patient not able to wear contact lenses. It was noted that the Veteran wanted a referral to a VA fee basis facility for an evaluation with Dr. A.N.C. On December 2007 VA examination, the Veteran reported vision symptoms of a stinging sensation in the right eye after ten hours of being awake and blurry vision in both eyes. He reported a past ocular injury of chemical exposure in both eyes in 1985. Keratoconus was first diagnosed around 2003 and currently treated with glasses, "Intacs" for the right eye and with soft perm contact lens for the left eye. The diagnoses were keratoconus, worse in right eye than left, recent corneal implant (Intacs) placed in right eye, and subnormal vision right eye worse than left eye. The examiner commented that there was keratoconus cause for visual impairment or disability of the right eye more than the left eye. The right eye had recent corneal implant, Intacs, as a treatment option with best corrected vision of 20/30- (placement of Intacs implant and glasses). The Veteran voiced poor quality of vision of the right eye even with correction. The left eye is correctable to 20/20 with glasses alone. According to the examiner, the definitive etiology of keratoconus was not known. He noted that there have been suggestions that chronic allergies and/or chronic eye rubbing may contribute to or increase occurrence of keratoconus. The Veteran reported history of ocular chemical exposure and working in dry dusty environment while in service. The examiner concluded that at this point, it is not possible to determine whether or not keratoconus is related to the Veteran's military service. Treatment records from the eye center (VA fee basis arrangement) dated from December 2008 to January 2012 show the Veteran was treated during that period for bilateral keratoconus and other eye disorders (dry eye, blepharitis, astigmatism choroidal nevus, benign and floaters). In a October 2009 ophthalmology outpatient clinic report, the Veteran reported that he developed poor vision while in the service but was not diagnosed until after discharge (within one year). He stated that he continues to see Dr. A.N.C., and has become intolerant of contact lens. The diagnosis was keratoconus, with Intacs, right eye. In a May 2010 letter by Dr. A.N.C., (seen by Veteran via VA fee basis arrangement) he noted that the Veteran had been a patient at the eye center for treatment of keratoconus that had been treated with prior Intacs using segments on the right eye and followed with photorefractive keratectomy, last treated in September 2007. The Veteran's diagnosis of keratoconus was made in 2003 per his initial evaluations at that time. Dr. A.N.C. opined that it is as likely as not the diagnosis of keratoconus was a result of chemical exposure or extreme exposure to sand and burning of the oil fields while he was on active duty. Based on the evidence, the Board concludes that service connection is warranted for bilateral eye disability (claimed as keratoconus). The Board observes that the Veteran has a current diagnosis of keratoconus. The Board acknowledges that the Veteran was not diagnosed as having keratoconus in service or in close proximity thereto, with the first actual diagnosis not occurring until 2006, approximately four years following service. However, he reportedly had and eye injury in service in 1985. He was diagnosed with having compound Hyperopia astigmatism during service in 1990; and in 1994 he was treated for corneal abrasion. In 1999 he complained of having blurry vision, and seeing flashes of light and floaters. Dr. A.N.C. relates that it is as likely as not that the diagnosis of keratoconus is a result of chemical exposure while the Veteran was on active duty. Dr. A.N.C. was familiar with the Veteran's history as the Veteran had been under his care since 2008, and the Board finds his opinion to be probative of the matter at hand. In sum, the Veteran clearly had injury to his eyes that affected his vision during his active service. He has competently reported that he had experienced symptoms associated with keratoconus since his retirement from active service. Moreover, although keratoconus was not actually detected and diagnosed during service, there is persuasive medical evidence that an eye injury in service is related to keratoconus. Therefore, service connection for bilateral eye disability (claimed as keratoconus) is warranted 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral eye disability. Entitlement to service connection for bilateral eye disability is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs