Citation Nr: 1800539 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-09 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for mixed astigmatism, claimed as vision loss/astigmatism. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to June 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. In an October 1971 rating decision, the RO denied service connection for mixed astigmatism based on the fact that mixed astigmatism is a constitutional or developmental abnormality, not a disability under the law. The Veteran was notified of the adverse determination, he did not appeal the determination, and no new and material evidence was submitted within the applicable appeal period. 2. In an April 2012 rating decision, the RO confirmed and continued the previous denial of service connection for mixed astigmatism. 3. Since the final October 1971 decision, evidence received is cumulative or does not tend to show that the Veteran's in-service vision problems are due to a service-connectable disability. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for mixed astigmatism is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). VA's duty to notify was satisfied by a letter in July 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA satisfied its duty to assist the Veteran in the development of the claim. VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, service personnel records, private treatment records, VA examination reports, and lay statements. All relevant documentation, including private (medical) treatment records, has been secured or attempted to be secured, and all relevant facts have been developed. There remains no question as to the substantial completeness of the record as to the issue on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. II. Claim to Reopen In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision makers. "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 C.F.R. § 3.156(a). In this regard, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required 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); see also VAOPGCPREC 05-92. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). In general, service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection. See 38 C.F.R. § 3.303(c), 4.9. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. Service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). The VA Adjudication Procedure Manual, M21-1, Part III, Subpart iv, Chapter 4, Section B provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1, III.iv.4.B.10.d. Generally, refractive errors are not diseases for VA compensation purposes. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; see also, e.g., Winn v. Brown, 8 Vet. App. 510, 516 (1996). In the absence of a superimposed disease or injury, service connection may not be granted for refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection. Thus, VA regulations specifically prohibit service connection for a refractive error of the eye unless such a defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 1990). Analysis The Veteran asserts that he is entitled to service connection for a vision disability. The Veteran's service treatment records (STRs) indicate that he was diagnosed with defective vision and refractive errors on entry into service in October 1966. He was found qualified for service. A medical examination from separation in June 1967 indicates a diagnosis of mixed astigmatism. He was found qualified for separation from service. In a May 1967 STR, the Veteran complained of pain and floaters. He was diagnosed with nystagmus causing decreased acuity. A June 1967 consultation sheet indicates a diagnosis of astigmatism, mixed. Examination revealed complete nystagmus and the Veteran's results did not meet minimum standards for retention. A medical board proceeding took place in June 1967 and the Veteran was separated from service for defective vision. New evidence received since the October 1971 rating decision includes the Veteran's statements and current evidence of treatment for an eye disability. The treatment records reflect diagnoses of bilateral nuclear sclerosis cataract, bilateral vitreous floaters, hyperopia, astigmatism, and presbyopia. The Veteran argued in his May 2012 notice of disagreement that he had been accepted into service, issued glasses, and discharged due to poor vision. He argued that if he met the minimum standards for qualification, but was then given a medical discharge, compensation is appropriate. In his March 2014 substantive appeal, the Veteran argued that his military medical records were not given due consideration. Having reviewed this evidence, the Board finds that this evidence is cumulative of the evidence of record at the time of the October 1971 decision or not material to the reason for the October 1971 denial, and that no new and material evidence sufficient to reopen the Veteran's claim has been received. Compared to the record at the time of the October 1971 decision, the additional evidence does not relate to the unestablished fact necessary to substantiate the Veteran's claims. The October 1971 decision denied entitlement to service connection because the Veteran's in-service diagnosis, mixed astigmatism, is not considered a disability under the law. The medical records added since this decision, showing the Veteran's current diagnoses and treatment, provide no evidence material to whether his in-service diagnosis is considered a disability under the law. Thus, they do not represent material evidence sufficient to reopen the Veteran's previously denied claim. 38 C.F.R. § 3.156(a). The Veteran's arguments, essentially that his medical discharge entitles him to service connection and that the RO's decisions failed to weigh the evidence correctly, provide no new and material argument that would allow reopening. These arguments do not address the reason for the October 1971 denial, namely that the Veteran's diagnosis, mixed astigmatism, is not considered a disability under the law. Moreover, to the extent that in-service nystagmus was associated with the Veteran's decreased acuity in service, the additional evidence does not include a current diagnosis of this disorder that could be independently linked to the Veteran's active service. As such, the arguments and additional evidence do not represent material evidence sufficient to reopen the Veteran's previously denied claim. 38 C.F.R. § 3.156(a). The Board is sympathetic to the Veteran's argument that he was found fit to serve and later given a medical discharge, however, the Board and VA are constrained by the regulations as written. In order to reopen the Veteran's claim, new and material evidence must be submitted, not evidence that is either cumulative of the record or not material to the reason for the prior final denial. 38 C.F.R. § 3.156(a). The Veteran's claim was previously denied because service connection may not be granted for refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection, unless such a defect was subjected to a superimposed disease or injury which created additional disability. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 1990). The Veteran offered no new and material evidence, either argument or medical records, that addresses this reason for the prior final denial, even when considering the low threshold to reopen a claim. Shade, 24 Vet. App 110. As such, reopening of the Veteran's previously denied claim is not warranted. The Board finds that no new and material evidence has been received sufficient to reopen his claim. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The appeal to reopen service connection for mixed astigmatism is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs