Citation Nr: 18154778 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-31 734 DATE: November 30, 2018 ORDER New and material evidence has not been submitted and the claim to reopen service connection for cataracts is denied. FINDING OF FACT No new and material evidence has been submitted since the last, final October 2006 rating decision that denied service connection for cataracts. CONCLUSION OF LAW The criteria for reopening service connection for cataracts have not been met. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1949 to December 1952. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. New and Material Evidence to Reopen Claim for Cataracts VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 – 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s service connection claim for cataracts was last denied in an October 2006 rating decision because the RO determined that there was no probative evidence that the Veteran’s cataracts were incurred in or caused by service to include as a result of sun exposure. Following the decision, the Veteran did not perfect an appeal or otherwise submit new and material evidence in the one-year period following the decision. Evidence was submitted in April 2007 pertaining to a claim for skin cancer; however, as no reference was made to any cataract disability, it would not have triggered VA’s duty to reconsider the claim. As such, the October 2006 decision became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Evidence received since the October 2006 rating decision, includes, an April 2013 statement in a notice of disagreement (NOD) to an unrelated rating decision on other claims (merely indicating that the Veteran wanted to reopen his claim for his eye condition, and requesting for instructions for procedure); an October 2014 correspondence from the Veteran; a June 2015 statement in support of claim form (merely indicating that he was claiming service connection for all of his disabilities, including and not limited to, eyes – cataracts); a December 2015 notice of disagreement (NOD) to the November 2015 rating decision; a December 2015 correspondence from the Veteran; a June 2017 Board appeal; a November 2018 statement of accredited representative; post-service VA treatment records from May 2000 to October 2016; and voluminous post-service private treatment records received by VA between April 2007 and July 2015. While these additional pieces of evidence are “new”, they are not material evidence because they do not present proof of an unestablished fact from the October 2006 rating decision, and specifically, none of them are evidence that the Veteran’s cataracts was incurred in or caused by service, or that they were a result of sun exposure during military service; and/or are not service medical records or post-service treatment records that support the Veteran’s contentions about continuous exposure to the sun resulting in his cataracts condition. As a matter of fact, with respect to new, probative evidence that the Veteran submitted as evidence of in-service causation and/or correlation to his cataracts, the Veteran’s assertions in his October 2014 correspondence, December 2015 NOD, and June 2017 Board appeal, that his cataracts are a result of constant exposure to working in the sun while on active duty service, are duplicative and repetitive of his assertions in a May 2006 correspondence that the RO considered as evidence in the October 2006 rating decision. In a December 2015 correspondence, the Veteran reported that in May 2013, he underwent eye surgery for cataracts on both eyes at a VA hospital in Temple, Texas, and that the physician, Dr. F., told him that his cataracts happened to him when he was “really young.” He asserted that these lay statements constitute as new, material evidence. Nonetheless, even though the evidence is new, as noted above, it is not material because the Veteran’s statement about the onset of his cataracts is vague, as it does not specify an age or date that could determine whether the onset of cataracts was during his period of active service, as a young Veteran; and further, it is not corroborated or supported by medical evidence, including, for example, a statement or opinion from Dr. F. In his November 2018 statement of accredited representative, the Veteran, through his representative, adopted the arguments and assertions from his NOD, Board appeal, and correspondences, as detailed above, but did not provide any new, additional lay statements and or documentation to support his claim to reopen. (Continued on the next page)   Summarily, none of the new pieces of evidence submitted since the last, final October 2006 rating decision, constitute as material evidence. Accordingly, no new, material evidence has been submitted and the claim to reopen service connection for cataracts must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel