Citation Nr: 1603431 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 14-26 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a left eye injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1945 to October 1945. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not indicate on his July 2014 substantive appeal form whether he wished to appear for a Board hearing on this matter. In subsequent documents submitted in November 2014 the Veteran did request a hearing. Thereafter, in January 2015 he attended an informal hearing conference with a Decision Review Officer. At that conference it was specifically noted that the Veteran "opted for an informal conference[.]" Accordingly, the Board will proceed as if the Veteran does not wish to have a Board hearing. See 38 C.F.R. §§ 20.700, 20.703 (2015). The Board also notes that at the January 2015 informal hearing conference, the Veteran submitted a medical record pertaining to his ears and hearing acuity, apparently without suggesting that he was claiming benefits for such. To the extent the Veteran wishes to file a claim for service connection for any condition not identified on the cover page of this decision, he should file a claim for such with the RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a June 1971 rating decision, the RO denied the Veteran's claim for service connection for a left eye injury; the Veteran did not appeal or submit new and material evidence during the appeal period. 2. The evidence added to the record since the June 1971 denial, when considered with previous evidence, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left eye injury. CONCLUSIONS OF LAW 1. The June 1971 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.302 (2015). 2. New and material evidence has not been received to reopen the claim for service connection for a left eye injury. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Claims Assistance Act Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). In June 2013, the Veteran signed a Fully Developed Claim (FDC) Certification form indicating that he had submitted all information or evidence to support his claim and had no additional information or evidence to provide. The FDC form includes notice to the claimant of what evidence is required to substantiate a claim for service connection and of the claimant's and VA's respective duties for obtaining evidence. The notice also provides information on how VA assigns disability ratings. Thus, the notice that is part of the FDC form submitted by the Veteran satisfies the duty to notify. In addition, the Board finds that the duty to assist a claimant has been satisfied. The record contains service personnel records, post-service treatment records, and a Decision Review Officer informal hearing conference report. As new and material evidence has not been submitted to reopen the Veteran's claim for service connection for a left eye injury, the duty to assist by obtaining a medical examination and opinion does not attach. 38 C.F.R. § 3.159(c)(4)(iii). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis The Veteran's initial claim for service connection for a left eye injury was denied in a June 1971 rating decision. While a letter from the Veteran that post-dates the June 1971 decision by less than a week was received after the issuance of the decision, the content of the letter indicates that the Veteran had not yet received the decision, and the letter, accordingly, does not express any disagreement with the decision or indicate an intent to appeal. Thus, the Board finds that the Veteran did not appeal the rating decision, nor did he submit relevant evidence within one year of that decision, and the decision is therefore final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2015); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). VA must review all of the evidence submitted since the last final rating decision to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence considered at the time of the June 1971 rating decision included service personnel records, a joint affidavit from the Veteran's comrades, and the Veteran's lay statements. Service connection was denied in that rating decision because there was no evidence that the Veteran had a left eye injury in service. Upon review of the record, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a left eye injury. The evidence received since the prior final denial includes additional lay statements from the Veteran, a private medical record noting the presence of bilateral senile cataracts, duplicate copies of the Veteran's comrades' affidavit, and the informal hearing conference report. The newly submitted medical evidence does not indicate that the Veteran was diagnosed with a left eye injury in service, or that his current eye disability is related to service. While the new evidence does indicate the presence of an eye disability, the Veteran's claim was not denied for lack of a current disability at the time of the June 1971 denial of service connection. Regarding the Veteran's newly submitted lay statements, he has presented no new argument for service connection and has simply continued to allege that he has an eye disability related to his service in a theater of war. While his report at the informal hearing conference regarding the alleged source of his in-service injury is slightly different than previous reports in that he then reported a bullet brushed by his eye and previously reported his eye was injured in an explosion or from excessive gun powder, his current report is consistent with the 1971 affidavit of his comrades that he was hit with an empty shell. Thus, the newly submitted evidence is cumulative of previously considered evidence. Ultimately, the Veteran has provided no new evidence showing that a left eye disability manifest during service or is otherwise related to service. In fact, at the informal hearing conference the Veteran reported that his eye was injured in 1944, prior to his active duty service. In short, as the evidence submitted since the prior final denial does not relate to the bases of that denial, the requirements of 38 C.F.R. § 3.156(a) have not been met, and the previously denied claim for service connection for a left eye injury is not reopened. Thus, the appeal is denied. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim for service connection for a left eye injury, the benefit-of-the-doubt doctrine is not applicable as to that claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER As new and material evidence has not been received, the claim for service connection for a left eye injury is not reopened and the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs