Citation Nr: 18148515 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-34 823 DATE: November 7, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for retinal scar, right eye is reopened. Entitlement to service connection for retinal scar, right eye is denied. New and material evidence having been received, the previously denied claim of entitlement to service connection for otitis externa is reopened. Entitlement to service connection for otitis externa is denied. FINDINGS OF FACT 1. A July 2005 rating decision denied entitlement to service connection for retinal scar, right eye. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since July 2005, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for retinal scar, right eye. 3. The preponderance of the evidence is against finding that the Veteran’s retinal scar, right eye is related to an event, injury, or disease in service. 4. A July 2005 rating decision denied entitlement to service connection for otitis externa. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 5. Some of the evidence received since July 2005, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for otitis externa. 6. The preponderance of the evidence is against finding that the Veteran’s otitis externa is related to an event, injury, or disease in service. CONCLUSIONS OF LAW 1. The July 2005 rating decision, which denied the Veteran’s claim of entitlement to service connection for retinal scar, right eye is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the July 2005 rating decision is new and material, and the claim of entitlement to service connection for retinal scar, right eye is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for retinal scar, right eye have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The July 2005 rating decision, which denied the Veteran’s claim of entitlement to service connection for otitis externa, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 5. The evidence received since the July 2005 rating decision is new and material, and the claim of entitlement to service connection for otitis externa is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 6. The criteria for entitlement to service connection for otitis externa have not been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to November 1967 with additional service in the Naval Reserves. New and Material Evidence To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis Entitlement to service connection for retinal scar, right eye and otitis externa was originally denied in July 2005. Evidence at the time of the July 2005 rating decision included the Veteran’s service treatment records (STRs). The RO denied the claims because the disabilities neither occurred in nor was caused by service. The Veteran did not submit a notice of disagreement with the July 2005 rating decision. VA did not receive new and material evidence within one year of the issuance of the July 2005 rating decision. As such, the July 2005 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In August 2014, the Veteran filed a new application for benefits. Evidence used to substantiate the claim included Social Security Administration records, VA treatment records, and VA examinations. The Board finds that the evidence is new and material evidence because it was not of record at the time of the final RO decision in July 2005 and indicates the Veteran has retinal scar, right eye and otitis externa disabilities which may be related to his active duty service. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claims of entitlement to service connection for retinal scar, right eye and otitis externa. See Shade, 24 Vet. App. 110. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for retinal scar, right eye The Veteran contends that his retinal scar, right eye is due to his military service. Specifically, he stated that while in service, he was involved in an automobile accident. He stated that his right eye was hanging out of the socket, and there were severe cuts to his right eye lid and under his eye. He further stated that he was taken to the naval hospital where surgery was performed to repair the damage. The Veteran has current diagnoses of corneal scar, cataracts, pinguecula, and choroidal nevus. As such, element one under Shedden is met. The Veteran’s service treatment records (STRs) note a cut on the Veteran’s right eye lid. As such, element two under Shedden is met. During his November 1967 Report of Medical History discharge examination, the Veteran’s eyes were noted as being normal. However, there was a note stating that in January 1966, the Veteran was involved in an automobile accident and he had a cut on his right eye lid and below his right eye. However, the Veteran had 20/20 vision, bilaterally. There were no other complaints, treatments, or diagnosis of an eye condition. During his January 1975 Report of Medical Examination Reserve Enlistment examination and his February 1976 Tri-Annual Physical, the Veteran’s eyes were noted as being normal. His vision was 20/20, bilaterally. In February 1976, his field of vision was normal. On his examinations thereafter, the Veteran noted that he did not have eye trouble. The Veteran’s post-service treatment records note treatment for an eye disorder. In June 2002, the Veteran was seen at the Columbus VA outpatient treatment. The examining physician stated that the Veteran had a superior lid injury during active service. Upon examination, the examiner noted right eye lineated scar through visual axis and optic nerve head drusen. In November 2013, an examiner stated that the Veteran had a motor vehicle accident (MVA) right eye with corneal lineated scar through visual axis, refractive error likely associated. In December 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his eye disorder. The Veteran stated that in 1966, he was in an auto accident where he hurt his head and right eye. The examiner diagnosed the Veteran with corneal scar, cataracts, pinguecula, and choroidal nevus. The examiner stated that the Veteran’s right corneal scar was not caused by foreign body or auto accident during service. The examiner further stated that the Veteran’s record showed an auto accident in 1966; however, examinations after that date in 1967 show vision at 20/20. Additionally, had the Veteran’s eye disorder been caused by the auto accident, the corneal scar would have caused a reduction in visual acuity. The Board finds the VA examiner’s opinion to be highly probative. The VA examination was thorough and adequate and provided a sound basis upon which to base a decision regarding the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the relevant history, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Although the medical examiner did not phrase the conclusion in terms of the benefit-of-the-doubt standard, the Board infers from the way the question was posed and the definitive tone of the opinion that the examiner meant that it is less likely than not that the Veteran’s disorder was incurred in or caused by the foreign body, right eye during service. Based on the evidence of record, the Board finds that service connection for the Veteran’s right eye disorder is not warranted. The Veteran stated that he injured his eye in an accident which left his eye hanging out of the socket, and he required surgery to correct the damage. However, the STRs do not document such damage to the Veteran’s eye but only a cut on his right eye lid. The Board also notes that even with the cut on the Veteran’s right eye lid, his 1967 separation and his 1975 and 1976 reserve examinations documented 20/20 vision, bilaterally. During his 1975 and 1976 Reserve examinations, the Veteran noted that he did not have eye trouble. Additionally, the VA examiner noted the Veteran’s in-service accident and eye disorder. The examiner stated that the Veteran’s right corneal scar was not caused by foreign body or auto accident during service. The examinations after the accident showed vision at 20/20. The examiner further noted that the corneal scar would have caused a reduction in visual acuity had it been caused by the auto accident. As such, element three under Shedden is not met. The Board has considered the Veteran and his representative’s opinion regarding the etiology of the Veteran’s eye disorder. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F. 3d. 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the Veteran and his representative’s opinion by themselves are outweighed by the VA examiner’s findings. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). For the reasons discussed above, the preponderance of the evidence is against the claim for service connection for retinal scar, right eye. Because the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for otitis externa The Veteran contends that his otitis externa is due to his military service. The Veteran has current diagnoses of otitis externa. As such, element one under Shedden is met. The Veteran’s STRs document complaints, treatments, and diagnosis for ear infections and right ear otitis external. As such, element two under Shedden is met. On his July 1963 Report of Medical History enlistment examination, the Veteran’s ear was noted as being normal. He reported that he did not have ear trouble. In October 1963, the Veteran was treated for an infected right ear. He was diagnosed with otitis external. During his November 1967 Report of Medical History: Discharge examination and January 1975 Report of Medical History: Reserve Enlistment examination, the Veteran’s ears were noted as being normal. However, during his 1975 examination, the Veteran noted that he had had ear trouble, i.e., he had three ear infections. His hearing was “ok” and “no trouble for five years. On his February 1976 Tri Annual physical, his ears were noted as being normal. In July 2013, the Veteran was seen at the Columbus VA Medical Center He was diagnosed with for external otitis, resolved. In December 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his ear disorder. The examiner stated that an October 1963 STR note stated that the Veteran had a right ear infection. In January 1975, he had three ear infections. His hearing was okay. The Veteran did not have trouble for five years. At the 2014 VA examination, the Veteran reported constant sounds in his ears with intermittent increase in intensity. He stated that in 2013, he developed pain in the left ear. He was treated with Amoxicillin and a steroid shot without benefit. He eventually had it debrided by an ear nose and throat (ENT) doctor with improvement. Final improvement occurred when he was given Acetic acid ear drops. The Veteran continued to have itching and was told that his left ear was “unhealthy.” The examiner confirmed the Veteran’s chronic otitis externa diagnosis. The examiner opined that the Veteran’s left ear otitis externa is less likely as not (less than 50 percent probability) caused by or a result of otitis externa. The examiner stated that the Veteran had episodes of acute otitis externa over 30 years apart which did not involve the same ear and each had resolved. Based on the evidence of record, the Board finds that service connection for the Veteran’s left ear otitis externa is not warranted. The Board notes that the Veteran’s STRs documents complaints, treatments and diagnosis of ear infections and right ear otitis external. However, the Veteran’s STRs do not document complaints, treatments, or diagnosis for left ear otitis externa. Additionally, the VA examiner opined that the Veteran’s left otitis externa is less likely as not (less than 50 percent probability) caused by or a result of otitis externa. The examiner stated that the Veteran had episodes of acute otitis externa over 30 years apart which did not involve the same ear and each had resolved. The Board notes that the examiner stated that the Veteran’s left otitis externa is less likely as not caused by or a result of otitis externa. However, based on the examiner’s rationale and the question posed, the Board finds it logical to assume that the VA examiner meant that is less likely as not that the Veteran’s current otitis externa was incurred in or caused by (the) otitis externa during service. The Board also notes that the first medical evidence of the Veteran’s post-service ear condition was in 2013, i.e., over 46 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran’s ear disorder for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). As such, element three under Shedden is not met. The Board has considered the Veteran and his representative’s opinion regarding the etiology of the Veteran’s left ear otitis externa. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the Veteran and his representative’s opinion by themselves are outweighed by the VA examiner’s findings and the evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As such, element three under Shedden is not met. For the reasons discussed above, the preponderance of the evidence is against the claim for service connection for left ear otitis externa. Because the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel