Citation Nr: 20003329 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-23 109 DATE: January 14, 2020 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for a right eye disability has been received, the application to reopen is granted. Entitlement to service connection for residuals of a right eye injury, to include a detached retina, cataract, and blurred vision is granted. FINDINGS OF FACT 1. An unappealed April 2009 Board decision denied service connection for a right eye disability. 2. Evidence received after the April 2009 Board decision bears directly and substantially upon the specific matters under consideration, is not cumulative or redundant, and, in connection with evidence previously assembled, raises a reasonable possibility of substantiating the claim for service connection for a right eye disability. 3. The evidence is at least in equipoise as to whether the Veteran’s right eye condition is related to his active service. CONCLUSIONS OF LAW 1. The April 2009 Board decision denying service connection for a right eye disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100 (2018). 2. New and material evidence has been received sufficient to reopen the claim for service connection for a right eye disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a right eye disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1972 to June 1975. The Veteran presented sworn testimony at a videoconference hearing in November 2019 before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. New and material evidence—right eye disability As a threshold matter with regard to the current appeal, the Board must determine whether new and material evidence has been received sufficient to reopen a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A. Finality By way of history, in April 2009, the Board denied service connection for a right eye disability and, in so doing, concluded that the evidence of record did not find that the Veteran’s right eye condition developed during active service, or was due to any even or injury in service. Board decisions become final upon mailing, and the Veteran did not file a request for reconsideration or appeal. Therefore, the April 2009 Board decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. B. New and Material Evidence VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 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 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the Veteran’s previous claim for service connection for a right eye disability was denied by the Board in April 2009 due a lack of evidence of a nexus between the current right eye disability and his service. To raise a reasonable possibility of substantiating the claim, the new evidence received must show that this condition began in service or is a result of the Veteran’s in-service eye injury. Following his claim to reopen, in March 2014, the Veteran submitted a private medical assessment and provided sworn testimony concerning his right eye condition. Additionally, VA treatment records were added to the claims file. This evidence was not previously of record and is considered new. The Board considers the new evidence competent and material to his claim for service connection. The application to reopen is granted. Service Connection – Right Eye disability The Veteran contends that his current right eye disability is related to his active service. The Board finds there is at least a balance of positive and negative evidence concerning whether the Veteran’s right eye is related to his active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service medical records show that the Veteran’s eye was injured when he was hit in the forehead with a bottle. However, both eyes were considered normal on separation, and the Veteran’s right eye visual acuity was measured to 20/40. An October 2003 medical note from a private retina specialist indicated that the Veteran’s right eye retinal detachment was likely secondary to the trauma at a younger age, as well as his traumatic cataract. On VA examination in March 2004, the examiner noted that the service treatment records actually note that the left eye was irritated after the Veteran was struck with a bottle but that his right eye was not indicated. The examiner also mentioned that the Veteran was in a motor vehicle accident in 1972 in which his eyes were affected, but the examiner did not specify whether the Veteran was on active duty at the time. The examiner determined that there was insufficient trauma to the eye in March 1975 to cause the Veteran’s retinal detachment. The examiner stated that the Veteran has bilateral lattice degeneration, which most likely led to his detached retina. The examiner further opined that, due to the distance in time, it was unlikely that there was any connection between the Veteran’s cataracts and the trauma during service. In a private medical assessment from September 2016, the Veteran’s treating physician remarked that the Veteran has retinal scarring from the retinal detachment. His right pupil was left scarred and he had some deforming from the old trauma. However, the examiner did not specify whether the trauma referred to be the 1975 accident or the surgery in 2003. At the November 2019 hearing, the Veteran testified that his right eye was injured during a fight with another soldier. He reported to an emergency room and received stiches and bandages, including an eye patch. He stated that, when the bandages were removed, he had blurred vision but was able to return to regular duty except for driving and was discharged a few months thereafter. He was diagnosed with a right eye cataract in the 1980s and a detached retina around 2003. He testified that the doctor who diagnosed his cataracts and detached retina told him they were caused by trauma, and he denied any post-service trauma to his eye. His cataract was removed in the 1980s, and the retina repair happened in 2003. The Veteran further testified that he has not had full vision since that repair and that two private physicians told him that his right eye condition was caused at a younger age, or many years ago. The Board recognizes the negative VA medical opinion as having adequate rationale. However, it is clear from the private medical records that the Veteran’s treating physicians have determined that his right eye condition is a result of the trauma he experienced during active service. The Board considers the Veteran’s testimony to be competent and credible and finds the opposing medical opinions of equal weight. In view of the totality of the evidence, the Board finds the medical evidence is at least in relative equipoise regarding this issue. When the evidence is in relative equipoise, the benefit-of-the-doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for a right eye, to include a cataract and a detached retina with blurred vision, is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lee 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.