Citation Nr: 20003238 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 17-26 095 DATE: January 15, 2020 ORDER The claim for service connection for a left eye condition is reopened. REMANDED Entitlement to service connection for a left eye condition is remanded. FINDINGS OF FACT 1. Service connection for a left eye condition was denied in a March 1978 administrative decision, which the Veteran did not timely appeal. 2. Since the March 1978 decision, new evidence has been received that favorably relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The March 1978 decision is final with regard to the service connection claim for a left eye condition. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for a left eye condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in November 2019; a transcript of the hearing is of record. Petition to Reopen Claim A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). “New and material evidence” is defined as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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). To warrant reopening, the new evidence must neither be 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Left Eye Condition A March 1978 administrative decision denied service connection for the Veteran’s left eye condition on the basis that it was due to willful misconduct. The Veteran was notified of the decision and his appellate rights in a March 1978 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. He did not submit a timely NOD. See 38 C.F.R. §§ 20.200, 20.202, 20.302. His May 1979 NOD was filed more than a year after notice of the March 1978 decision, and thus was not timely. See id. He was notified of that fact in a July 1979 letter. Accordingly, the March 1978 decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The March 1978 decision denied service connection for a left eye condition because it was found that the Veteran had been drinking heavily at the time of an October 1969 accident involving the jeep he was driving, and consequently that his resultant injuries, including to the left eye, were due to being intoxicated. The March 1978 decision found that, pursuant to 38 C.F.R. § 3.301, the Veteran’s injury was due to willful misconduct, and thus not incurred in line of duty. Since the March 1978 decision was issued, the Veteran submitted a written statement that an Admiral had issued a letter during the Veteran’s active service finding that the October 1969 jeep accident was not due to willful misconduct and that injuries sustained in it were incurred in line of duty. In his May 2017 substantive appeal (VA Form 9), the Veteran stated that he was not intoxicated when he was driving the jeep. The Veteran’s statements are new to the file, and relate to the unestablished fact of whether his left eye injury was incurred in line of duty. For purposes of determining whether reopening is warranted, they are presumed credible. They are not redundant of evidence of record at the time of the March 1978 decision, and raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been received to reopen the claim for a left eye condition. See 38 C.F.R. § 3.156. REASONS FOR REMAND The Veteran’s service personnel records must be obtained, to the extent possible, as they may provide relevant evidence regarding whether his left eye injury was incurred in line of duty. See 38 C.F.R. § 3.159(c). The matter is REMANDED for the following action: The Veteran’s service personnel records must be obtained and added to the file, to the extent possible. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.