Citation Nr: 1326571 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-19 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for loss of vision, left eye with scar disability. 2. Entitlement to service connection for loss of vision, left eye with scar disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to May 1982. These matters are before the Board of Veterans' Appeals (the Board) on appeal of a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that declined to reopen a claim for service connection for loss of vision, left eye with scar disability on the basis that new and material evidence had not been received. FINDINGS OF FACT 1. In an unappealed October 2000 rating decision, the RO denied entitlement to service connection for loss of vision, left eye with scar. 2. Evidence received since the October 2000 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for loss of vision, left eye with scar. 3. Resolving doubt in favor of the Veteran, his loss of vision, left eye with scar disability is shown to be etiologically related to his active duty service. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria for reopening the claim for service connection for loss of vision, left eye with scar are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Service connection for loss of vision, left eye with scar is warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A (a) (2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition of the claim to reopen and grant the claim for service connection for loss of vision, left eye with scar; the Board finds that all notification and development actions needed to fairly adjudicate these claims has been accomplished. Claim to Reopen VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Veteran sought to reopen his claim in August 2007. In this regard, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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) (2012). In the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's October 2000 denial of service connection for loss of vision, left eye with scar disability. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Factual Background and Analysis In an October 2000 rating decision, the RO denied the Veteran's claim of entitlement to service connection for loss of vision, left eye with scar disability on the basis that there was no evidence linking the Veteran's left eye disability to his service. The Veteran did not appeal the October 2000 rating decision within a year, and it became final. 38 U.S.C.A. § 7105. The Veteran sought to reopen his claim in August 2007. Evidence received since the October 2000 rating decision includes an August 2007 VA treatment note which indicated that the Veteran had choriroretinal scars consistent with the Veteran's reported trauma in 1980. The main scar was the primary cause of the Veteran's decreased acuity in the left eye. The Board finds that the above-described evidence provides a basis for reopening the claim for loss of vision, left eye with scar disability. Indeed, this evidence is "new" in that it was not before agency adjudicators at the time of the October 2000 denial of service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it pertains to the previously unestablished element of a link between a current left eye disability and service, and raises a reasonable possibility of substantiating the claim. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. The prior denial of service connection in the October 2000 rating decision was based on a finding that the Veteran's current loss of vision, left eye with scar disability was not incurred in the Veteran's service. The August 2007 VA treatment report suggests a current left eye disability that is related to service as the physician opined that the Veteran had choriroretinal scars consistent with the Veteran's reported trauma in 1980. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for loss of vision, left eye with scar disability, have been met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Claim for Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board has reviewed all the evidence in the Veteran's claims file. 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the 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). Factual Background and Analysis As a preliminary matter, the Board notes that the Veteran's service treatment records are not available and may have been lost. The RO has made several attempts to locate these records. It is incumbent upon VA to afford the Veteran's claims heightened consideration due to the unfortunate loss of most of his service treatment records. See, e.g., Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran contends that he has a current loss of vision, left eye with scar disability as a result of service. He specifically claims that while in Mannheim, Germany in 1980, his left eye was scratched by another soldier's M16 during a training exercise. He reported that after he got out of the military, he had difficulties seeing. An August 2007 VA treatment note indicated that the Veteran had choriroretinal scars consistent with the Veteran's reported trauma in 1980. The treating physician noted that the main scar was the primary cause of the Veteran's decreased acuity in the left eye. An undated private medical record submitted in September 2007 noted that the Veteran was seen in the physician's office in April 2004 and October 2006. He had an extensive scar in the left retina and had decreased vision in the left eye. This condition had existed since 1980 per the Veteran's reported history. In a July 2009 statement, a fellow soldier reported that he was in Mannheim, Germany in 1980 when the Veteran injured his eye during a Medi-Vac training exercise. The solider noted that the Veteran wore an eye patch after the incident for an extended period of time. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for loss of vision, left eye with scar is warranted. As previously mentioned, the Veteran's service treatment records are regrettably not available for review. The medical evidence of record reflects that the Veteran has a current diagnosis of choriroretinal scars and decreased acuity of the left eye. As discussed above, the claims file contains an August 2007 opinion from a VA physician who opined that the Veteran had choriroretinal scars consistent with the Veteran's reported trauma in 1980 and that the main scar was the primary cause of the Veteran's decreased acuity in his left eye. Additionally, the July 2009 buddy statement from a fellow soldier indicates that the Veteran incurred an in-service eye injury. Since the Veteran has credibly reported left eye problems since service, a buddy statement attests to the fact that an in-service eye injury occurred, and the claims file contains a detailed medical opinion suggesting that the Veteran's current left eye disability could have had its onset during active duty, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's left eye disability began during his active duty service. Thus, resolving doubt in favor of the Veteran, the Board concludes that service connection must be granted for the Veteran's loss of vision, left eye with scar disability. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for loss of vision, left eye with scar, is reopened. Entitlement to service connection for loss of vision, left eye with scar is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs