Citation Nr: 1318906 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-44 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for right ankle strain. 2. Entitlement to service connection for myopia. 3. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1985 to June 1998 and from October 2003 to February 2005, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that correspondence received by VA in November 2009 may be construed as raising increased rating and clear and unmistakable error claims, but no specific matters were identified and no claims arising from this correspondence were adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran's statements may be reasonably construed as a claim for an increased rating for his central serous retinopathy with macular disturbance of the right eye. As the Board does not have jurisdiction over any such claims, they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for diabetes mellitus 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 decision dated in March 2003 denied entitlement to service connection for right ankle sprain. 2. Evidence added to the record since the March 2003 rating decision does not raise a reasonable possibility of substantiating the claim. 3. Myopia, a congenital or developmental vision defect, is not shown to have developed as a result of a superimposed disease or injury during active service. CONCLUSIONS OF LAW 1. New and material evidence was not received and the claim for entitlement to service connection for right ankle sprain may not be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Myopia was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in July 2008 and September 2008. To successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms new and material have specific, technical meanings that are not commonly known to VA claimants. Because the requirements define particular types of evidence, when providing the notice required, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. The notice letters provided adequately informed the Veteran of the evidence necessary to reopen his right ankle disability claim. Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service medical records, VA treatment records, Virtual VA electronic records, and statements in support of the claims. Although the Veteran was notified by correspondence dated in March 2011 that VA had been unable to obtain his service treatment records for periods from March 2013 to June 1998 and from October 2003 to February 2005, the available record includes service treatment records dated during these periods. These records appear to be substantially complete as to the issues on appeal and the Veteran has identified no specific, pertinent treatment records believed to be missing. Further attempts to obtain additional evidence would be futile. VA's duty to assist requires reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). VA regulations, however, provide that when a claimant fails to report for a scheduled medical examination, without good cause, an original compensation claim shall be rated based upon the evidence of record. 38 C.F.R. § 3.655 (2012). The available record in this case shows the Veteran was provided a VA eye examination in January 2003 and that a subsequent March 2003 rating decision established service connection for central serous retinopathy with macular disturbance of the right eye. In his July 2008 claim he requested disability compensation for myopia and asserted that he had blurry and impaired vision due to an injury to his eyes during active service. The Board notes that the Veteran's service-connected central serous retinopathy with macular disturbance of the right eye may be rated based upon visual impairment due to retinal scars, atrophy, or irregularities, but that an increased rating issue is not for appellate review. VA records show the Veteran failed to report for a scheduled eye examination in November 2008 and that he was provided notice as to this matter in the January 2009 rating decision and in his November 2009 statement of the case. There is no indication the Veteran was not adequately notified of the scheduled examination nor that he had good cause for his failure to report. Therefore, the Board finds the original service connection claim for myopia must be decided based upon the evidence of record under the provisions of 38 C.F.R. § 3.655. VA regulations also state that there is no duty to provide a medical examination when a veteran has not presented new and material evidence to reopen a final claim. 38 U.S.C.A. § 5103A(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(iii) (2012). No new and material evidence was received in this case as to the right ankle disability claim. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims addressed in this decision would not cause any prejudice to the appellant. New and Material Evidence Claim A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 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 (West 2002); 38 C.F.R. § 3.156(a) (2012). When VA does not consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying rating decision does not become final. Young v. Shinseki, 22 Vet. App. 461 (2009). When statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Buie v. Shinseki, 24 Vet. App. 242 (2011). The credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). When making a determination whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claim for entitlement to service connection for right ankle strain was denied in an August 2002 rating decision and upon reconsideration in a March 2003 rating decision. The March 2003 rating decision is shown to have considered service treatment records demonstrating a right ankle injury, but to have found that the evidence demonstrated no present chronic right ankle disability. Reference was made to the findings of a January 2003 VA examination that, in pertinent part, indicated that the right ankle appeared within normal limits, that there was no evidence of deformity, subluxation, or loss of range of motion, and that X-rays of the ankle showed no abnormality. The Veteran did not appeal this decision, nor did he submit any additional evidence within a year of that decision. See Buie v. Shinseki, 24 Vet. App. 24 (2010). Thus, that decision became final one year later and represents the last final denial of the claim. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The evidence added to the record since the final rating decision includes statements and from the Veteran reiterating his service connection claim and a March 2011 statement from a fellow serviceman who recalled his having sustained a right ankle injury during active service. The Veteran also provided duplicate copies of service treatment records. VA treatment records added to the record after March 2003 are negative for complaint, diagnosis, or treatment for a right ankle disorder. Based upon a comprehensive review, the Board finds the evidence added to the record since the last final rating decision does not raise a reasonable possibility of substantiating the claim. The evidence obtained is essentially cumulative of the evidence previously considered. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony/statement that are cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). There is no indication that the newly obtained evidence could, if the claim were reopened, reasonably result in substantiation of the claim. There is no new evidence indicating a present right ankle disability. Therefore, the claim for entitlement to service connection may not be reopened. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Congenital or developmental defects, such as refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2012). However, service connection may be granted for defects of congenital, developmental or familial origin if the defect was subject to a superimposed disease or injury. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes 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), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record shows the Veteran complained of blurred vision in the right eye after an object got in his eye while cutting grass in April 1994. Subsequent records noted the eye was inflamed with serous exudate. A July 1994 report provided a diagnosis of central serous retinopathy of the right eye. A January 1998 report noted an Amsler grid visual field loss to the right eye and an unspecified loss in the left eye. Service connection was established for hypertension in August 2002. A March 2003 rating decision established service connection for central serous retinopathy with macular disturbance of the right eye. In statements in support of his claims the Veteran reported that he had experienced vision problems since approximately 1994. He also asserted that his hypertension may have an affect on his vision. A September 2002 statement from K.H., O.D., noted the Veteran had an ocular history of idiopathic central serous choroidopathy to the right eye since 1995. It was noted that in June 2002 his best corrected visual acuity was 20/25, right, and 20/20, left. The left retina was normal and the right macula had a small area of detachment with precipitates. VA eye examination in January 2003 revealed visual acuity without correction in the right eye of 20/40-1, and in the left eye of 20/25. Visual fields were full to finger count in each quadrant. The diagnoses included diabetes mellitus type II without ophthalmic signs, central serous retinopathy with macular disturbance as a sequelae without loss of visual acuity, and no evidence of hypertensive retinopathy. Subsequent VA treatment records note refractive error with correction and a right eye retina scar. The Veteran failed without cause to report for a VA eye examination in November 2008. Based upon the evidence of record, the Board finds that myopia, a congenital or developmental vision defect, is not shown to have developed as a result of a superimposed disease or injury during active service. The Veteran failed to report for a scheduled VA eye examination in association with this original service connection claim and the claim must be decided based upon the evidence of record. See 38 C.F.R. § 3.655 (2012). The available evidence shows the Veteran sustained a right eye injury during service and that service connection has been established for hypertension and central serous retinopathy with macular disturbance of the right eye. A January 2003 VA eye examination found no evidence of hypertensive retinopathy and that there was no loss of visual acuity due to central serous retinopathy with macular disturbance of the right eye. The January 2003 examination report and the available treatment records do not include a diagnosis of myopia. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an eye/visual disorder, including myopia, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Myopia is not the type of condition that are readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that visual testing and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). That is, although the Board readily acknowledges that Veteran is competent to report decreased visual acuity, there is no indication that the Veteran is competent he Veteran is not found to be competent to state that any vision symptoms he has experienced were due to myopia or a present vision disability as a result of a superimposed disease or injury during active service. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating eye/visual disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board finds the preponderance of the evidence in this case is against the claim for entitlement to service connection. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence was not received to reopen a claim for entitlement to service connection for right ankle strain; the appeal is denied. Entitlement to service connection for myopia is denied. REMAND A review of the records reveals that the Veteran's service connection claim for type II diabetes mellitus has not been addressed by VA examination. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The types of evidence that "indicate" a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service connection can also be granted for certain chronic diseases, including diabetes mellitus, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran contends that during service he was told he had border-line diabetes. In a March 2011 statement O.D.N. recalled that the Veteran had gone to sick call during active service and that he received a diagnosis of early signs of diabetes. Service treatment records are negative for treatment or diagnosis of diabetes or pre-diabetes, but a February 1997 report of examination noted laboratory glucose findings of 98. VA treatment records dated in July 2002 noted a new diagnosis of type II diabetes mellitus. Therefore, additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has type II diabetes mellitus that was manifest during or within one year of active service. All indicated tests and studies are to be performed. The examiner must review the claims file and must note that review in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs