Citation Nr: 1754543 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 17-20 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for lower extremity paralysis. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypothyroidism. 3. Entitlement to service connection for blindness and cataracts. 4. Entitlement to special monthly compensation based on loss of use. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from July 1952 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In absence of a timely appeal, a May 2005 Board decision denying entitlement to service connection for paralysis of the lower extremities is final. 2. The evidence received since the May 2005 decision does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for loss of use of lower extremities. 3. In absence of a timely appeal an August 1997 Board decision denying entitlement to service connection for hypothyroidism is final. 4. The evidence received since the August 1997 decision does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for hypothyroidism. 5. Blindness and cataracts did not result from the Veteran's active duty service. 6. The Veteran is service connected for dermatophytosis of the hands and feet. 7. The Veteran's service-connected disability does not result in loss of use. CONCLUSIONS OF LAW 1. The May 2005 Board decision denying entitlement to service connection for paralysis of the lower extremities is final; as new and material evidence has not been received, the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. The August 1997 Board decision denying entitlement to service connection for hypothyroidism is final; as new and material evidence has not been received, the criteria for reopening the claim have not been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 20.1103. 3. Blindness and cataracts were not incurred during active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for establishing special monthly compensation for loss of use are not met. 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the claim decided, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Lower Extremities In May 2005 the Board denied entitlement to service connection for paralysis of the lower extremities finding that the evidence preponderated against concluding that any lower extremity disorder was related to service, to include due to an asserted inservice exposure to carbon tetrachloride. Since the appellant did not perfect a timely appeal to that decision the May 2005 decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. A finally decided claim may be reopened if the claimant presents new and material evidence with respect to a claim which has been previously denied and which is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. If the claim is so reopened, it will be reviewed on a de novo basis. 38 U.S.C. § 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996). New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 C.F.R. § 3.156(a). Since the May 2005 Board decision, the appellant has not submitted new and material evidence that raises a reasonable possibility of substantiating the claim. The evidence of record at the time of the May 2005 decision did not establish a link between any lower extremity disability or a link between any lower extremity abnormalities and any in-service purported exposure to carbon tetrachloride. The Veteran has not submitted new evidence since May 2005 which challenges either of those findings. As evidence which relates to an unestablished fact necessary to substantiate the claim has not been received, there is no new and material evidence which would allow reopening the claim. 38 C.F.R. § 3.156. Hypothyroidism In an August 1997 Board decision entitlement to service connection for hypothyroidism was denied because the evidence did not establish a link between hypothyroidism and the Veteran's military service. Since the appellant did not perfect a timely appeal to that decision, or submit new and material evidence in a timely manner, the August 1997 decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. Since the August 1997 Board decision the appellant has not submitted new and material evidence that raises a reasonable possibility of substantiating the claim. The evidence of record at the time of the August 1997 decision did not establish a link between hypothyroidism and the Veteran's military service. The Veteran has not submitted new evidence since August 1997 which challenges this finding. Since August 1997, the Veteran submitted a February 1988 clinical record indicating a diagnosis of hypothyroidism, however, VA had already found that he had a current diagnosis of hypothyroidism. As evidence relating to an unestablished fact necessary to substantiate the claim has not been received since August 1997, there is no new and material evidence which would allow reopening the claim. 38 C.F.R. § 3.156. Blindness and Cataracts The Veteran contends that his blindness and cataracts are due to a viral infection caused by inservice exposure to carbon tetrachloride. 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, 1131. 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(d). A review of the service reveals no complaints, findings or diagnoses pertaining to either blindness or cataracts. At the Veteran's June 1956 separation examination his was noted to wear glasses, but to have near vision correctable to 20/20 bilaterally. The preponderance of the postservice evidence weighs against a current disability of blindness and cataracts. The record does not include any diagnosis of a current eye disorder manifested by blindness and/or cataracts. Further, the Veteran does not report being diagnosed or treated for his blindness and cataracts. In absence of a current diagnosis of blindness and cataracts, service connection cannot be established. See Shedden v. Principi, 381 F.3d 1163, 1166 - 67 (Fed. Cir. 2004). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Special Monthly Compensation Special monthly compensation is a statutory award and is payable at a specified rate if the Veteran has suffered the anatomical loss or loss of use of one hand, one foot, blindness of one eye having only light perception, or deafness of both ears, having absence of air and bone conduction. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). As set forth above, entitlement to service connection for paralysis of the lower extremities and blindness are not warranted. The Veteran is currently service connected only for dermatophytosis of the hands and feet. The record does not show that any alleged loss of use of ears, eyes, and the lower extremities is due to service-connected disability. As such, there is no legal basis to establish entitlement to special monthly compensation based on loss of use and the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). ORDER New and material evidence having not been received, a claim of entitlement to service connection for paralysis of the lower extremities is not reopened. New and material evidence having not been received, a claim of entitlement to service connection for hypothyroidism is not reopened. Entitlement to service connection for blindness and cataracts is denied. Entitlement to special monthly compensation based on loss of use is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs