Citation Nr: 20034464 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 20-13 948 DATE: May 18, 2020 ORDER New and material evidence not having been received, the application to reopen the claim of entitlement to service connection for an eye disorder is denied. Service connection for a muscle disorder is denied. FINDINGS OF FACT 1. In a final rating decision issued in June 2007, the Agency of Original Jurisdiction (AOJ) denied service connection for an eye disorder, characterized as myopia with astigmatism. 2. Evidence added to the record since the final June 2007 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an eye disorder. 3. At no time during the pendency of the claim does the Veteran have a current disability of a muscle disorder separate and distinct from his service-connected sarcoidosis with muscle pain and the record does not contain a recent diagnosis of disability prior to the filing of a claim. CONCLUSIONS OF LAW 1. The June 2007 rating decision that denied service connection for an eye disorder, characterized as myopia with astigmatism, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for an eye disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for a muscle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In regard to the Veteran’s application to reopen the previously denied claim for service connection for an eye disorder, the Board notes that, although the AOJ found in the February 2020 statement of the case that new and material evidence had been received to reopen such claim, AOJ decisions are not binding on the Board and, consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran’s claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an eye disorder. By way of background, the Veteran’s original claim for service connection for an eye disorder was received in March 2007. In a June 2007 rating decision, the AOJ considered the Veteran’s service treatment records and an April 2007 VA examination. In this regard, the AOJ noted that his service treatment records reflected a diagnosis of iritis secondary to sarcoidosis. However, while the April 2007 VA examination reflected the Veteran’s report of red eyes, a foreign body sensation, and watering in both eyes, only myopia with astigmatism was diagnosed. Thus, as such refractive errors of the eye are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes, the AOJ denied service connection for such eye disorder. In June 2007, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, such rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2006). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the June 2007 rating decision includes updated VA treatment records, a February 2020 VA examination, and the Veteran’s lay statements. In this regard, VA treatment records reflect the Veteran’s complaints of red eyes, blurred vision, and burning in the right eye in May 2009, December 2012, and March 2019, respectively, which were treated with eye drops, and a notation of glaucoma suspect was provided. Similarly, a February 2020 VA examination revealed a diagnosis of myopia with astigmatism with an incidental finding of glaucoma suspect. In this regard, the examiner indicated that the Veteran’s myopia with astigmatism is a refractive error and not an eye disease, and reiterated that glaucoma suspect was an incidental finding. He further stated that neither disorder is related to iritis or sarcoidosis, and there were no ocular signs or pathology of sarcoidosis on examination. Finally, in his statements, the Veteran has reiterated his claim that, as he experienced iritis related to sarcoidosis in service, he should be service-connected for an eye disorder. However, as the Veteran’s claim for service connection for an eye disorder was previously denied on the basis that such is a refractive error that is not a disease or injury within the meaning of applicable legislation for disability compensation, and the newly received evidence likewise only shows such a diagnosis, it is not material. Specifically, since the June 2007 rating decision, the Veteran continues to have a diagnosis of myopia with astigmatism and, while he has suspected glaucoma, such has not yet been diagnosed and, as noted by the February 2020 VA examiner, such is an incidental finding. Further, the evidence fails to show a diagnosis of an eye disorder related to the Veteran’s in-service iritis or service-connected sarcoidosis. Finally, the Veteran’s reports regarding his eye symptomatology and his allegation that he has an eye disorder as a manifestation of his sarcoidosis that had its onset in service as iritis are duplicative of those previously of record at the time of the June 2007 rating decision. Therefore, the Board finds the evidence added to the record since the final June 2007 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran’s claims for service connection for an eye disorder. Therefore, as new and material evidence has not been received, his application to reopen such claim must be denied. 2. Entitlement to service connection for a muscle disorder, to include as secondary to sarcoidosis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). However, pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he currently has muscle pain related to his service-connected sarcoidosis. Specifically, he states that he was diagnosed with sarcoidosis in service after experiencing muscle pain, which has continued to the present time. The Veteran’s service treatment records reflect a diagnosis of sarcoidosis, which included symptoms of generalized myalgias, in February 1987. Similarly, May 2017 and June 2017 VA examinations for sarcoidosis reflects the examiner’s notation that the Veteran has difficulty working due to fatigue and muscle aches. Thus, in the August 2017 rating decision, the Veteran’s service-connected sarcoidosis was recharacterized to include muscle pain. In February 2020, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed muscle pain. At such time, the examiner noted the Veteran’s reports that his muscle pain began when he was diagnosed with sarcoidosis in service, and has continued to the present time. She further observed that the Veteran’s service treatment records reflect myalgias during his in-service hospitalization for sarcoidosis, but his post-service treatment records were negative for any further evaluation and/or treatment for such claimed symptoms. In fact, she observed that, in March 2019, it was noted that the Veteran was very active and worked full-time, very rarely needed his inhaler, and there was no documentation of myalgia secondary to sarcoidosis. Furthermore, following a physical examination, the examiner found that the Veteran did not have a disability of a muscle disorder, there was no functional impairment associated with such claimed disorder, and his claimed myalgias secondary to sarcoidosis are not a result of an injury to a muscle. The Board affords great probative weight to the February 2020 VA examiner’s opinions as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, she offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Therefore, while the Veteran is competent to report experiencing muscle aches and pain, to include in connection with his sarcoidosis, he is not competent to relate such complaints to a diagnosed muscle disability as such is a complex medical matter and extends beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that at no time during the pendency of the claim does the Veteran have a current disability of a muscle disorder separate and distinct from his service-connected sarcoidosis with muscle pain and the record does not contain a recent diagnosis of disability prior to the filing of a claim. See McClain, supra; Romanowsky, supra. Thus, where, as here, there is no probative evidence indicating that the Veteran has the disability for which service connection is sought, there can be no valid claim. See Brammer, supra. Thus, for the foregoing reasons, the Board finds that service connection for a muscle disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a muscle disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allison Payne 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.