Citation Nr: 18159934 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 18-27 526 DATE: December 20, 2018 ORDER New and material evidence has not been received, the claim for entitlement to compensation under 23 U.S.C. § 1151 for glaucoma and iris atrophy, left eye, post-surgery is not reopened New and material evidence has not been received, the claim for service connection for a left eye disability is not reopened. New and material evidence has not been received, the claim for service connection for headaches is not reopened. FINDINGS OF FACT 1. By an August 2013 decision, the Board denied reopening the Veteran’s claim for entitlement to compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery. 2. Evidence associated with the claims file since the August 2013 Board decision is new, but cumulative, does not relate to a previously unestablished fact and does not raise a reasonable possibility of substantiating the claim for entitlement to compensation under 23 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery. 3. By a July 2009 decision, the Board denied reopening the Veteran’s claim for service connection for a left eye disability. 4. Evidence associated with the claims file since the July 2009 Board decision is new, but cumulative, does not relate to a previously unestablished fact, and does not raise a reasonable possibility of substantiating the claim for service connection for a left eye disability. 5. By a November 2014 rating decision, the RO denied reopening the Veteran’s claim for service connection for headaches. 6. Evidence associated with the claims file since the November 2014 rating decision is new, but cumulative, does not relate to a previously unestablished fact and does not raise a reasonable possibility of substantiating the claim for service connection for headaches. CONCLUSIONS OF LAW 1. The Board’s August 2013 decision denying reopening the Veteran’s claim for entitlement to compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2018). 2. As evidence received since the Board’s August 2013 denial is new but not material, the criteria for reopening the claim for entitlement to compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery are not met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 3. The Board’s July 2009 decision denying reopening the Veteran’s claim for service connection for a left eye disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2017). 4. As evidence received since the Board’s July 2009 denial is new but not material, the criteria for reopening the claim for service connection for a left eye disability have not been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 5. The RO’s November 2014 rating decision denying reopening the Veteran’s claim for service connection for headaches is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2018). 6. As evidence received since the RO’s November 2014 denial is neither new nor material, the criteria for reopening the claim for service connection for headaches have not been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1957 to January 1961. These matters come before the Board of Veterans’ Appeals (Board) on appeal of May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin that declined to reopen claims for compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery and declined to reopen a claim for service connection for headaches. In the August 2017 Statement of the Case (SOC), the RO intermingled two distinct issues as: “Whether new and material evidence sufficient to reopen the claim for service connection and entitlement to compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery, has been received.” The Board has separated these issues, as noted above, to underscore the fact that the Board’s last final decision concerning service connection for left eye disability was rendered in July 2009; whereas the Board’s last final decision concerning entitlement to compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery, was rendered in August 2013. The Veteran testified before a Decision Review Officer at the RO in March 2017. No response was received from the Veteran to clarify inconsistent requests for a Board hearing. Therefore, any request for a Board hearing is considered withdrawn. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing 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. 38 C.F.R. § 3.156 (a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 38 U.S.C § 1151 Claim In the August 2013 Board decision, which denied reopening the claim for entitlement to compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery, the Board considered new evidence that included copies of US Air Force unit morning reports for the Veteran’s unit dating from 1960 and 1961, added to the evidence of record in May 2003 and January 2007. The Board found that while these records were indeed new and are service department records, they were not pertinent to the 38 U.S.C § 1151 issue on appeal. In short, these records, there was no mention of the Veteran claimed left eye conditions in these morning papers. The Board also considered downloaded copies of articles about glaucoma; essential iris atrophy; and endothelial syndromes (ICE). In pertinent part, this collection of materials explained the differences between acute glaucoma and primary open-angle glaucoma; additionally, they describe the pathophysiology of these eye disorders. However, this collection of materials was without any commentary by a clinician or healthcare professional. In its decision, the Board found that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case fails to provide competent evidence to establish a nexus element. Likewise, the 2011 and 2012 VA treatment records submitted as evidence showed that the Veteran complained about his left eye condition and treatment he had received at multiple healthcare facilities, as such these records were redundant of records already considered. When assessing the totality of this evidence, the Board found that it did not provide evidence material the issue of whether any portion of the Veteran’s left eye blindness was causally or etiologically related to any incident of his treatment in any VA treatment facility. Since August 2013, VA received multiple lay statements from the Veteran that, though new, are cumulative because he repeats the history of events and treatment in and after service, a history already considered. VA also obtained more than 1000 pages of VA outpatient treatment records and April 2014 correspondence from a VA attending clinician that show the continued existence of a left eye disability such that the Veteran is considered legally blind. This evidence is also cumulative as a current disability was previously acknowledged. The evidence is not material to the previously unestablished facts; i.e. that the Veteran incurred an additional disability proximately caused by VA medical care. New and material evidence to reopen the claim for entitlement to compensation under 38 U.S.C § 1151 for glaucoma and iris atrophy, left eye, post-surgery, has not been received. Therefore, this 38 U.S.C § 1151 claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Left Eye Disability In the July 2009 Board decision, which denied reopening the service connection claim for a left eye disability, the evidence consisted of a statement from a Dr. P. physician, a VA resident; 4 lay statements from the Veteran; medical records from the Social Security Administration (SSA); VA treatment records from February 2004 to November 2004; copies of correspondence to Congresswoman M. and Senator F.; and internet downloaded articles addressing iris atrophy and glaucoma. As the Board opined, this evidence reiterated, repeatedly, the allegations already considered by agency decision makers at the RO and the Board. While this evidence was new, it was cumulative, hence not new and material. As this evidence did not relate to unestablished facts necessary to substantiate either the left eye disability claim, the evidence did not raise a reasonable possibility of substantiating the claim. Since July 2009, VA received a large file of VA treatment records from multiple VA facilities where the Veteran received on-going care from 2010 through 2018 for his previously acknowledged left eye disability. Additionally, a March 2017 RO hearing transcript has been associated with the claims file. A review of the Veteran’s testimony reveals that the Veteran reiterated contentions including military and medical history that he made during prior hearings and in many lay statements submitted over the past decades. Specifically, the Veteran reiterated his contentions as to an in-service incurrence, treatment (and deficiencies thereof), and time in the stockade confinement/incarceration. This evidence is new, but it is cumulative and does not relate to unestablished facts necessary to substantiate the left eye disability service connection claim. The evidence is not material and does not raise a reasonable possibility of substantiating the left eye disability claim. Therefore, the evidence is not new and material and the service connection claim for left eye disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Headaches In the November 2014 rating decision, which denied reopening the service connection for headaches, the evidence consisted a supplemental claim for compensation; a lay statement from the Veteran; and VA treatment records from January 2012 through 2019. As the RO indicated, this evidence is not new and material as it did not relate to an unestablished fact necessary to substantiate the headaches disability claim. Since November 2014, VA received or obtained multiple lay statements by the Veteran relevant to his service and post-service history and a large file of VA outpatient treatment records. The lay statements, though new, are cumulative of reports and contentions that were previously considered. The VA treatment records confirm the existence of a previously acknowledged headache disorder but are not material to the unestablished fact of causation or aggravate by service or by another service-connected disability, specifically the left and right eye disorders that have not been recognized as service-connected. Here too, the Board has considered the evidence of additional VA treatment records and hearing testimony discussed above. As this evidence does not relate to unestablished facts necessary to substantiate the headaches disability service connection claim, the evidence did not raise a reasonable possibility of substantiating the claim. (Continued on the next page)   Therefore, the evidence is not new and material and the service connection claim for headaches is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel