Citation Nr: 1637421 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 15-02 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen the previously denied claim for service connection for a right eye disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1956 and from February 1962 to September 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran withdrew his request for a hearing before the Board. 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. The claim for service connection for a right eye disability was previously denied in a November 2008 rating decision. The Veteran did not appeal the decision and it is therefore final. 2. Evidence added to the record since the November 2008 denial is cumulative or redundant of the evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The November 2008 rating decision that denied service connection for a right eye disability is final. 38 U.S.C.A. § 7104 (b) (West 2014); 38. C.F.R. § 20.1100, 20.1104 (2015). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right eye disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The RO denied the Veteran's claims of entitlement to service connection for a right eye disability in a November 2008 rating decision. The Veteran did not appeal the decision and thus the decision is final. 38 U.S.C.A. §§ 7103; 38 C.F.R. § 20.1103. A claim of entitlement to service connection may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds that new and material evidence has not been submitted in this case. At the time of the November 2008 initial denial, the RO considered the Veteran's service treatment records, including a record demonstrating treatment for a chalazion of the right upper eye lid in December 1955, as well as the Veteran's statement that he was diagnosed with a right eye and ear condition in service for which he was currently receiving treatment. The RO also considered evidence from the identified private physician as well as VA treatment records. Since filing his July 2012 claim to reopen, the Veteran has not put forth an alternative theory of entitlement nor does the newly received evidence trigger the VA's duty to assist. Evidence added to the record since the November 2008 rating decision includes more recent VA treatment records and a VA examination dated October 2012, with an addendum opinion dated in November 2014. The VA examiner in October 2012 determined that there was no residual from the prior chalazion of the right eye. In November 2014, an addendum opinion concluded that the in-service diagnosis of chalazion did not lead to the Veteran's currently diagnosed right eye disability because chalazion and resultant treatment was not a condition that would cause pseudophakia or esotropia (though the evidence does not reflect esotropia in the right eye). This evidence, while new, does not relate to an unestablished fact necessary to substantiate the claim nor does it provide a reasonable basis for substantiating the claim. The opinions also do not suggest any alternative theory of entitlement, even when viewed under a low evidentiary standard. Moreover, new VA treatment records demonstrate a continuing diagnosis of left eye esotropia status post-surgery, bilateral status post cataract surgery, and dry eye syndrome. They document the Veteran's report in June 2013 that he had a "crooked eye" and that he desired disability compensation for such. Then, in February 2014, they document his report that his large angle left esotropia had been present since the mid-1990's in association with herpes zoster ophthalmicus. Again, this new evidence does not provide a reasonable basis for substantiating the claim as it does not suggest service incurrence of his current right eye disability, diagnosed as pseudophakia, a continuity of symptoms since service, or a medical nexus to relate the current right eye disability to service. A review of the newly received evidence does not meet the new and material evidentiary standard as described above. The service records reflect that in December 1952, the Veteran was treated for a chalazion of the right upper eye lid that improved with antibiotics. The service records do not otherwise document an injury of the eye, or "nerve injury," as claimed. They do not document a chronic disability of the right eye, or evidence of cataracts. There are no post-service records to show that the Veteran suffers from a chalazion or condition of the right eye that would relate to service. Because the newly received evidence does not provide a reasonable basis to substantiate the claim, or at least trigger the VA's duty to assist, the claim to reopen the previously denied claim for service connection for a right eye disability must be denied. ORDER The claim to reopen the previously denied claim for service connection for a right eye disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs