Citation Nr: 18152984 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-34 564 DATE: November 27, 2018 ORDER 1. New and material evidence has been received to reopen a claim of entitlement to service connection for residuals of burning injury to the eyes and reopening is granted. 2. Entitlement to service connection for residuals of burning injury to the eyes is denied. FINDINGS OF FACT 1. The evidence received since the August 1994 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of burning injury to the eyes. 2. The preponderance of the evidence weighs against associating any currently diagnosed eye injury pt residuals with any incident of service or to a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for residuals of burning injury to the eyes. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for residuals of burning injury to the eyes has not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1971 to July 1973. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Atlanta Regional Office (RO) in Decatur, Georgia. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on behalf of the Veteran. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no new and material evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence has been received to reopen a claim of entitlement to service connection for residuals of burning injury to the eyes. An August 1994 rating decision denied service connection for residuals of eye injury because despite service medical records show[ing] treatment for burning injury to the eyes, because the service injury was shown to be a temporary condition which resolved with treatment, and no permanent residual disability was shown at the time of separation. The August 1994 rating decision became final in August 1995 when the Veteran did not perfect an appeal in a timely manner or submit any new and material evidence within one year following that decision. An August 2013 rating decision denied an attempt by the Veteran to reopen the claim of entitlement to service connection for residuals of burning injury to the eyes because the Veteran did not submit new and material evidence. The Veteran filed a notice of disagreement to the August 2013 rating decision in July 2014. Medical records showing a diagnosis of keratoconjunctivitis sicca are of record. That includes an April 2013 letter from the Veteran’s treating physician stating that he was diagnosed with and being treated for keratoconjunctivitis sicca and eye examinations from May 2000 through February 2001. In July 2014, the Veteran submitted private medical evidence that shows that the Veteran has mild cataracts in both eyes, “exceedingly dry eyes,” and was getting treatment for both on a continuing basis. The Veteran has since provided a June 2016 letter from a treating physician that states, “we have seen [the Veteran] on a number of occasions for a tear insufficiency otherwise known as dry eye. He says his symptoms began in 1972 when he was in the military. A vehicle battery exploded on his face and the acid went in his eyes and he says ever since then his eyes have bothered him. It is certainly possible that a chemical injury from many years ago could have contributed to and/or caused his tear insufficiency.” The credibility of the newly submitted evidence is presumed in determining whether the new evidence is material. Justus v. Principi, 3 Vet. App. 510 (1992). As the medical statement is presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Altogether, the Veteran as submitted new evidence of a current chronic diagnosis and a nexus opinion. Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for residuals of burning injury to eyes is reopened. Service Connection Service connection may be established for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in-service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Secondary service connection may also be established for a non-service connected disability which is aggravated by a service-connected disability. In that instance, the Veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for residuals of burning injury to the eyes. The Veteran asserts that he has a bilateral eye disability that is related to service. Specifically, the Veteran contends that current keratoconjunctivitis sicca or a dry eye disability is the direct result of a 1972 incident where a battery blew up in his face. The Board concedes the incurrence of an in-service injury as service medical records from August 1972 show that a battery did exploded in the Veteran’s face during service in the Air Force. At the time of the incident, the Veteran’s eyes were irrigated and he was treated with medication. The Board notes there are no subsequent service medical records regarding eye complaints, discomfort or treatment. The Veteran’s separation examination in April 1973, notes that the Veteran was in good health and does not note any complaints relating to the eyes. The general eye, pupil, ocular mobility, and ophthalmoscopic examinations were normal. The claims file does not show a diagnosis for any eye condition until May 2000, many years after service, when the Veteran was found to have keratoconjunctivitis sicca. Treatment for keratoconjunctivitis sicca continues to the present. The Veteran has also been diagnosed with a dry eye syndrome. The evidence of record must establish that a current disability is etiologically related, or cause, by an in-service incident or injury. The Board finds that the preponderance of evidence is against the finding of any nexus between the Veteran’s in-service event and a current disability. In an April 2016 VA examination, the examiner opined that “the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner provided the rationale that the Veteran had a dry eye syndrome and had been treated with punctual plugs, artificial tears, and also Restasis at one time. There did not appear to be any anterior segment scarring on examination and there was no mention of a dry eye syndrome until 2013 in the service records. Medical records confirmed the date of the battery explosion. However objective examination had negative findings. No eye issues or complaints were mentioned at the 1973 clinical separation exam. The examiner opined that the dry eyes/eye conditions were less likely than not related to an accident in 1972. To support the claim, the Veteran provided the Board with a June 2016 letter from his current treating physician. In that June 2016 letter, the Veteran’s physician noted having seen the Veteran on a number of occasions for a tear insufficiency otherwise known as dry eye. The examiner noted the Veteran reporting that his symptoms began in 1972 when he was in service and a vehicle battery exploded on his face and the acid went in his eyes. The Veteran stated that since then his eyes had bothered him. The examiner opined that, “It is certainly possible that a chemical injury from many years ago could have contributed to and/or caused his tear insufficiency.” Otherwise, the only evidence which provides any connection between the Veteran’s eye injury and service comes from the Veteran. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, whether the residuals of the burning injury are caused by active service, those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide etiology or diagnostic opinions. Therefore, to the extent the Veteran relates any current eye disability to service, that is not a competent opinion. The April 2016 VA examiner opined that it was less likely than not that any current eye disability was related to active service. The Board finds the April 2016 VA examiners’ opinion to be more probative than the lay statements of record and the June 2016 private physician letter. The opinion of the April 2016 VA examiner is highly probative because it is supported by detailed, sound rationale and provided by a trained medical professional. The VA examiner specifically identified and discussed the Veteran’s contentions and theory concerning service and the claimed disability. The April 2016 VA opinion is found to be of high probative weight and dispositive of the claim. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion she reaches. The credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The July 2016 private medical opinion is speculative because the opinion is stated in speculative terms. The examiner found it was “certainly possible” that a current eye disability could be related to the incident in service. However, that speculative opinion is not sufficient to establish that it is at least as likely as not that any current eye disability is related to service. The Board finds that the April 2016 VA examination is more persuasive also because it is not stated in speculative terminology. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The preponderance of the evidence is against a finding of a causal connection between the Veteran’s service and any current eye disability. The weight of the competent and credible evidence establishes that the Veteran’s current eye disabilities were first manifested approximately 28 years after service separation. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. West, 12 Vet. App. 453 (1999); Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for residuals of burning injury to the eyes, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk