Citation Nr: 1312705 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-23 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left eye disorder, to include amblyopia and/or exanopsia, claimed as a lack of vision in the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his nephew ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to March 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The case was certified to the Board by the New York, New York RO. In a rating decision of April 1946, VA denied entitlement to service connection for a left eye disability, specifically, amblyopia with exanopsia. In a subsequent rating decision of May 2008, VA declined to reopen the issue of entitlement to service connection for amblyopia and exanopsia. The Veteran voiced no disagreement with either of those decisions, both of which have now become final. Since the time of the most recent rating decision in May 2008, the Veteran has submitted additional evidence in an attempt to reopen his claim. VA found such evidence both new and material, but continued its denial of service connection for a left eye disability. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. In a May 2008 rating decision VA declined to reopen the issue of entitlement to service connection for a left eye disability, specifically, amblyopia and/or exanopsia of the left eye. 2. Evidence submitted since the May 2008 rating decision by itself, or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the Veteran's claim. CONCLUSIONS OF LAW 1. The May 2008 rating decision declining to reopen the issue of entitlement to service connection for a left eye disability are final. 38 U.S.C.A. §§ 5103, 5103A, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the rating decision in May 2008 declining to reopen the issue of entitlement to service connection for a left eye disability is new, but not material, and insufficient to reopen the Veteran's previously-denied claim. 38 U.S.C.A. § 5103, 5103A, 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in correspondence of May 2009 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. The May 2009 letter informed the Veteran what evidence was necessary to reopen the claim. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that a VA examination is in order. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, and those of his nephew, offered during the course of a hearing before the undersigned Veterans Law Judge in August 2012. The Board also reviewed and considered the service treatment records, VA (including Virtual VA) and private treatment records and examination reports, and various correspondence from the Veteran's wife and nephew. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection The Veteran in this case seeks to reopen the claim of entitlement to service connection for a left eye disability, to include amblyopia and/or exanopsia. In pertinent part, it is contended that the Veteran's current left eye disability is the result of an incident in service, at which time the Veteran was thrown from the tank on which he was riding by a nearby explosion. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Notwithstanding the aforementioned, once entitlement to service connection for a given disorder has been denied by a rating decision, that decision, absent disagreement by the Veteran within a period of one year, is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Where a claim for entitlement to service connection has been previously denied, and that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence has been presented with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered to be "new" if it was not previously submitted to agency decisionmakers. Evidence is "material" if, by itself, or when considered with previous evidence of record, it 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 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In addition, new evidence may be found to be material if it provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board of Veterans' Appeals to alter its decision." See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, at the time of the aforementioned May 2008 rating decision, there were on file the Veteran's service treatment records. Those records disclosed that, at the time of a service entrance examination in March 1943, there was evidence of amblyopia/anisometropia in the Veteran's left eye, with corrected and uncorrected visual acuity of 20/400. Noted at the time of service entrance was that the Veteran was physically qualified for limited military service only by reason of insufficient vision. Service treatment records dated in 1945 show continued evidence of amblyopia in the Veteran's left eye, with accompanying defective vision, considered to have existed prior to the Veteran's entry upon active military service. In an undated service treatment record, apparently dated sometime in 1945, it was noted that, according to the Veteran, approximately 12 years earlier, he had been hit in his left eye with a piece of wood. Reportedly, since that time, the Veteran could not see anything except shadows and blurry outlines out of his left eye. The pertinent diagnosis noted was severe chronic traumatic amblyopia in the left eye, once again, considered to have existed prior to the Veteran's entry upon active military service. At the Veteran's March 1946 service separation examination there was once again noted the presence of left eye amblyopia/exanopsia, reportedly the result of an injury prior to the time of the Veteran's entry upon active military service. Also of record in May 2008, was a February 2008 VA ophthalmologic examination report. Following that examination, which involved a full review of the Veteran's claims folder and medical records, it was the opinion of the examiner that there was no present medical diagnosis shown on examination which could be attributed to the Veteran's claim of entitlement to service connection for loss of sight in the left eye. In that regard, the record indicated that the Veteran had trauma in the 1930's prior to his induction examination, at which time his vision was found to be 20/400 in the left eye. The 2008 examination revealed that the Veteran exhibited adult-onset macular degeneration, with reduced vision, somewhat greater in the left eye than the right. According to the examiner, based on a review of the record and an examination of the Veteran, there were no signs of any inservice event which caused trauma to the Veteran's eyes resulting in reduced vision. Rather, the record indicated that the Veteran had reduced vision on entering service due to a preservice trauma, with accompanying reduced vision subsequent to service. According to the examiner, due to the Veteran's age, the appellant suffered from age-related macular degeneration, which was independent of any of his previous diagnoses. This reportedly affected the clarity of the Veteran's vision, and distorted his vision. In the opinion of the examiner, based on a review of the record and examination of the Veteran, there was no current medical diagnosis shown on examination which could be attributed to the Veteran's claim of entitlement to service connection for loss of sight in the left eye. Based on such evidence, VA determined that new and material evidence had not been submitted to reopen the Veteran's claim. The May 2008 rating decision was adequately supported by and consistent with the evidence then of record, and is now final. Evidence submitted since the time of the most recent rating decision in May 2008, consisting, for the most part, of duplicate service treatment records, as well as VA and private outpatient treatment records, records of the Office of the Surgeon General, Department of the Army, testimony at an August 2012 hearing, and statements by the Veteran's wife and nephew, while "new" in the sense that it was not previously of record, is not "material." More specifically, such evidence shows primarily only current treatment for the Veteran's various eye problems, with no documented relationship between those problems and any incident or incidents of his period of active military service. Significantly, notwithstanding a statement by the Veteran's nephew to the effect that recorded visual acuity at service entrance of 20/400 "must have been a typo," given that the Army would "never have inducted" a man who was "blind in one eye," the Veteran did serve and his entrance examination clearly lists the presence of amblyopia/anisometropia, with both corrected and uncorrected visual acuity in the left eye of 20/400. In like manner, a statement by the Veteran's spouse lists only a chronology of his various eye-related difficulties, with no demonstrated relationship between those difficulties and any incident or incidents of his period of active service. Under the circumstances, the Board is of the opinion that the evidence submitted since the time May 2008 rating decision declining to reopen the issue of entitlement to service connection for a left eye disorder, including amblyopia and/or exanopsia, does not constitute new and material evidence. That is, by itself, or when considered with the previous evidence of record, the newly-received evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, the appeal to reopen the issue of entitlement to service connection for a left eye disability must be denied. Because appellant has not fulfilled his threshold burden of submitting new and material evidence to reopen his claim, the benefit of the doubt doctrine cannot be applied in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for a left eye disorder, to include amblyopia and/or exanopsia, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs