Citation Nr: 1311374 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-00 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for defective vision. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which declined to reopen the claim of entitlement to service connection for defective vision. In October 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to provide the Veteran with VCAA notice. The action specified in the October 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A February 1992 RO decision denied entitlement to service connection for defective vision; the Veteran appealed, but withdrew his appeal in December 1992. 2. Evidence received since the February 1992 RO decision is not new and material and the Veteran's claim cannot be reopened. CONCLUSIONS OF LAW 1. The February 1992 RO decision that denied entitlement to service connection for defective vision is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been received since the February 1992 RO decision, and the Veteran's claim for entitlement to service connection for defective vision is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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 must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. New and Material Evidence The Veteran previously filed a claim seeking entitlement to service connection for defective vision, which was denied in a February 1992 RO decision. The Veteran appealed, but withdrew his appeal in December 1992. In January 2005, the Veteran filed a petition to reopen his claim for service connection for defective vision, which the RO denied because he had not presented new and material evidence. The Veteran has appealed. He has contended that his administrative duties in service caused eye strain and led to a gradual loss of visual acuity. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2010). The February 1992 rating decision, in which the appellant's service connection claim was disallowed on the merits, is final. 38 C.F.R. § 20.1103. This is so because the appellant did not perfect an appeal of the rating decision to the Board within the time period allowed nor did he submit relevant evidence prior to the expiration of the appeal period. 38 C.F.R. § 3.156 (a)(b) . However, 38 U.S.C.A. § 5108 provides that if 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has clarified that, with respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Rather, the reasons for the final disallowance must be considered in determining whether the newly submitted evidence is material. Id. Such evidence must tend to prove the merits of the claim as to each essential element that was a reason for that last final disallowance of the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. When the RO denied the claim in February 1992 it considered the Veteran's service medical records as well as a VA examination conducted in 1991. The service medical records reflect that he had refractive error and a diagnosis of myopia. The VA examination indicated that the Veteran wore glasses and had not sustained eye trauma or illness but had eye strain. The diagnosis was refractive error. The RO denied the appellant's prior claim because it found that defective vision (myopia) is a developmental condition which existed at the time of enlistment and was not permanently aggravated by a trauma or additional pathology in service. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's refractive error was subjected to a superimposed injury or disease which resulted in additional disability. Since February 1992, the Veteran has submitted duplicate copies of service treatment records noting his visual acuity and copies of eye examinations he received in service. This evidence is not new and material as it was of record at the time of his February 1992 decision and was considered by the RO at that time. The Veteran has also submitted copies of receipts of payment for eye examinations and lenses obtained post service. While this evidence is new, because it was not considered in 1992, it is not material. None of the receipts the Veteran has submitted suggests a relationship between the Veteran's current defective vision and his military service. None of it reflects evidence of a superimposed disease or injury in service. The records merely reflect that post-service, the Veteran has received periodic eye examinations and on occasion purchased new lenses. This is not in and of itself remarkable since many people receive routine eye examinations as a means of ensuring good visual health. While the Veteran continues to argue that his administrative duties in service caused progressive vision loss, his arguments are duplicative of those he made in 1992. Furthermore, to the extent that the Veteran has attempted to offer an opinion concerning the etiology of his defective vision, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has defective vision due to his occupational duties in service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. In conclusion, as the Veteran has failed to submit new and material evidence, his previously denied claim for defective vision cannot be reopened. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. The letter must also inform the Veteran of the bases of the prior denial. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in January 2007 and October 2011. These letters informed the Veteran of the reason his claim was previously denied, the evidence necessary to reopen his prior claim, and the evidence required to establish his underlying claim for benefits. The Veteran was also informed of VA and the Veteran's respective duties for obtaining evidence, as well as how VA assigns disability ratings and effective dates. However, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in October 2011. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in July 2012 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records. The Veteran submitted copies of service treatment records, as well as private medical records. As the Veteran's claim has not been reopened, he is not entitled to a VA medical examination. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER As new and material evidence has not been received, the Veteran's previously denied claim for entitlement to service connection for defective vision is not reopened. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs