Citation Nr: 18143250 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 18-08 987 DATE: October 18, 2018 ORDER The previously denied claim for service connection for an eye claimed as snow blindness is reopened. New and material evidence has not been submitted to reopen the claim for service connection for removal of wisdom teeth and the claim is denied. Service connection for mild corneal scarring in the left eye is granted. Service connection for all other eye problems is denied. Service connection for an allergic reaction to a penicillin shot is denied. FINDINGS OF FACT 1. The evidence received subsequent to the most recent final denial of service connection for an eye disability claimed as snow blindness is new and material. 2. An October 2015 rating decision denied the Veteran’s claim for entitlement to service connection for removal of wisdom teeth. The Veteran did not appeal the decision, and that decision is final. 3. The additional evidence presented since the October 2015 rating decision is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for removal of wisdom teeth. 4. The preponderance of the evidence is against finding that the Veteran has an eye disability, other than mild corneal scarring in the left eye, due to a disease or injury in service, to include injuries caused by refection of the snow. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of residuals of an allergic reaction to penicillin. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the October 2015 rating decision, the requirements to reopen a claim for service connection for an eye disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.302. 2. New and material evidence has not been received, and the criteria for reopening the claim for service connection for removal of wisdom teeth sleep have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for an eye disability, other than corneal scarring in the left eye, are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for corneal scarring in the left eye have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for residual of an allergic reaction to penicillin are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1950 to October 1953. The Veteran testified before the undersigned Veterans Law Judge in August 2018. 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). 1. Whether new and material evidence has been submitted to reopen the claim for service connection for an eye disability claimed as snow blindness With regard to the claim concerning new and material evidence for an eye disability claimed a snow blindness, the Board notes that the claim was previously denied in an October 2015 rating decision, on the basis that no new and material evidence had been submitted since a November 2007 Board decision that denied service connection as he did not have a current eye disability. The Veteran did not perfect the appeal to that October 2015 rating decision, or submit new and material evidence within a year of the decision. As such, that rating decision became final. Since the October 2015 rating decision, newly received evidence consists of an August 2018 letter from the Veteran’s private treatment provider that reported the Veteran has a right eye disability caused by slow blindness incurred during service. The Board finds that the evidence added to the claims file is new as it was not before the adjudicators at the time of the October 2015 rating decision. Furthermore, the new evidence is material because it relates to unproven elements of the claim previously denied in the October 2015 decision. Specifically, that newly submitted evidence suggests that the Veteran’s disabilities may have been caused by snow blindness during service. Accordingly, the Board finds that the low threshold for reopening the claim have been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the new evidence is material, and the Veteran’s claim for entitlement to service connection for an eye disability is reopened. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for removal of wisdom teeth An October 2015 RO rating decision denied service connection for removal of wisdom teeth on the bases that there was no evidence that the teeth were removed due to combat or in-service trauma. Additionally, service connection was denied as a matter of law for the removal of the wisdom teeth. The Veteran did not appeal that decision and that decision is final. 38 U.S.C. § 7104. The evidence added to the claims file since the October 2015 RO decision consists of VA treatment records, private treatments records, and the Veteran’s testimony from the August 2018 Board hearing. These records do show any relevant treatment or reports for treatment of a dental condition. The medical evidence received since the RO’s October 2015 decision which was not of record at the time of the RO decision is new within the meaning of 38 C.F.R. § 3.156. However, the evidence is not material. None of the evidence submitted since the October 2015 rating decision relates to an unestablished fact, which in this case would be evidence that removal of the wisdom teeth during active service, was the result of dental trauma or combat. There is no new evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a dental condition. The Board therefore finds that the submitted evidence is not new and material, and that it does not raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); 38 C.F.R. § 3.156. Therefore, the claim of entitlement to service connection for removal of wisdom teeth is not reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. Congress specifically limited entitlement for service-connected disease or injury to cases where the incident resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110; Brammer v. Derwinski, 3 Vet. App. 223 (1992). 3. Entitlement to service connection for an eye disability claimed as snow blindness The Veteran asserts that he has a current eye disability caused by snow blindness. During the August 2018 Board hearing, he credibly testified that the injury occurred in 1951 while stationed in Minneapolis, Minnesota. He reported that after marching for a few days he was treated with gel for snow blindness affecting his eyes as well as being admitted to a hospital for a few days. He also denied ever being told by a doctor that his eye condition was caused by snow blindness. A review of the Veteran’s service treatment records shows no treatment or complaints for any eye conditions. Specifically, an examination conducted in March 1953, two years after the Veteran reported the onset of eye injury, his eyes were evaluated as normal. Examination showed the sclera clear; EOM intact; pupils were round, regular and equal; reactive to light and accomodation. Additionally, the Veteran’s discharge examination in September 1953 also showed clinically normal eyes with the Veteran self-reporting he had no eye problem or injuries. The Veteran did self-report indigestion issues which were also noted within his service treatment records. Post-service, the Veteran underwent a VA examination in April 1989, at which he was assessed with normal vision without glasses and he did not self-report an eye condition. Private treatment records from 2014 also show that the Veteran was assessed with normal eyes. The Board notes that the Veteran was first assessed with an eye disability in August 2018. A private physician reported that the Veteran had a history of snow blindness, known as photokeratitis, involving his left eye which led to some mild scarring to the cornea in the left eye. The private physician reported that the condition had not changed since the original injury during the Korean War. The accounts of the Veteran’s in-service snow blindness are supported by credible testimony regarding the Veteran’s in-service exposure to bright sun and snow while stationed in Minnesota. As such, the medical opinion is based on a credible recitation of the Veteran’s service and medical history, and therefore service connection for mild corneal scarring in the left eye is granted. While the Veteran does have other eye conditions, there is no suggestion that any are related to the photokeratitis he experienced in service. Service treatment records show no reports for any eye injuries. Moreover, the Veteran self-reported that he did not experience any eye problems during service. The Veteran was also assessed with normal eyes in 1989 and 2014. The Board notes that the Veteran was not diagnosed with any eye conditions until 2018 which is more than 60 years after separation from service. Absence of any clinical evidence for decades after service weighs the evidence against a finding that any eye condition other than mild corneal scarring in the left eye was present in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Of note, while the August 2018 private physician letter links mild corneal scarring in the left eye to the Veteran’s service, no other eye condition is suggested to be the result of his service. Therefore, the Board finds that service connection for any current eye disability other than mild corneal scarring in the left eye is denied. 4. Entitlement to service connection for allergic reaction for penicillin shot The Veteran asserts that during service, he was given a penicillin injection, which caused an allergic reaction consisting of a swollen arm. A review of the Veteran’s service treatment records shows no reports of residuals of an allergic reaction to a penicillin reaction during service. While post-service treatment record shows that the Veteran was assessed with being allergic to penicillin. Initially, the threshold consideration for any service connection claim is the existence of a current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, while the Veteran has voiced complaints of residuals of an allergic reaction to penicillin in service, there is no medical evidence to show that he has experienced any residuals of the in-service reaction, during the course of his appeal. Consequently, the Board finds that the criteria for service connection for residuals of an allergic reaction to penicillin. The only evidence of record in support of the Veteran’s claim are his own lay statements and testimony, in which he contends he has residuals of an allergic reaction to penicillin during service. However, he as not specifically identified any actual residuals. While the Veteran’s allergy to penicillin may have been discovered in service, there is no suggestion that such an allergy was actually caused by service. The only other evidence of record supporting the Veteran’s claim are his own lay statements. In those statements, the Veteran contends he has a current disability from the allergic reaction incurred during service. However, the Board finds that the Veteran is a layperson, and there is no evidence of record to show that he has the specialized medical education, training, and experience necessary to provide a competent medical opinion as to the nature and etiology of the medical condition he asserts warrants service connection. Moreover, an allergy simply not considered to be a disability, and while residuals of an allergic reaction might be service connected in some instances if they resulted in a chronic residual disability, such is not the case here. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not demonstrate that the Veteran has a current disability of residuals of an allergic reaction. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for this claim is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel