Citation Nr: 21075137 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-39 892 DATE: December 17, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim for entitlement to service connection for bilateral keratoconus with defective vision is granted. REMANDED Entitlement to service connection for keratoconus with defective vision is remanded. Entitlement to service connection for bilateral eardrum holes (ear condition) is remanded. FINDING OF FACTS 1. In an April 1980 rating decision, the Regional Office (RO) denied the Veteran's claim of entitlement to service connection for bilateral keratoconus with defective vision. 2. Evidence added to the record since the April 1980 rating decision is not cumulative or redundant of evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral keratoconus with defective vision. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final April 1980 decision, the criteria for reopening, the claim of entitlement to service connection for bilateral keratoconus with defective vision are 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 in the United States Air Force from March 1979 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) RO. The Veteran testified before the undersigned Veterans Law Judge in an August 2021 hearing. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108, 7105(c). When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312, 31 (1999). New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. 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. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this 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 by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 1. Bilateral Keratoconus An April 1980 rating decision denied service connection for bilateral keratoconus with defective vision (eye disorder) because the RO determined that his eye disorder was a preexisting condition from childhood and was not aggravated by service. See April 1980 Rating Decision. The Veteran filed a new claim in January 2000 where the RO denied reopening in a September 2000 rating decision. Again, the Veteran filed a claim to reopen in July 2009 where it was denied in a September 2009 rating decision. The Veteran did not file an appeal to any of the above rating decisions, and therefore those decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In denying the claim, the RO considered his military personnel record and service treatment records (STRs). In April 2016, the Veteran filed an intent to file a claim and proceeded to file the claim in July 2016. In the rating decision on appeal, the RO denied reopening of his claim as there was no new and material evidence submitted establishing that his condition, which preexisted service, was worsened or aggravated due to his service. See October 2016 Rating Decision. Evidence submitted since the last final denial includes private medical treatment records, VA medical treatment records, and Veteran's statements in the August 2021 hearing. Upon review of the aforementioned evidence, the Board finds that the VA and private treatment records, along with the Veteran's testimony, are new and material. This evidence is new because it has never been submitted, and it is not redundant of evidence already of record. The evidence is material because it contains evidence that his condition did not preexist service. See August 2021 Hearing Transcript. Given such, reopening the claim is in order, as the evidence is new and material. The reopened claim is further addressed in the remand section below. REASONS FOR REMAND 1. Eye Disorder The Board finds that a remand is necessary for further development. Specifically, the Board finds a VA examination and medical opinion is necessary for the Veteran's claim for service connection for eye disorder. The Veteran has not been afforded an examination for his eye disorder. The Board finds the low threshold requirement has been met for a VA examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim). Here, the record reflects evidence of eye disorder. See VA Medical Treatment Records. The Veteran contends that his disabilities are due to service. The STRs contain a diagnosis of his eye disorder, and it is noted that this eye disorder was the reason for his medical discharge from service. The Board finds that there is no nexus statement for the Veteran's claim to determine whether service connection is allowed. Given such, the Board finds a remand is warranted to afford the Veteran a VA examination for his eye disorder. 2. Ear Condition Again, the Board finds a remand is necessary for further development. Specifically, the Board finds the September 2016 VA examination for hearing loss and tinnitus does not address the Veteran's ear condition. See September 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The Board finds that a remand is necessary to obtain a new VA examination for the Veteran's ear condition and a VA medical opinion. The Board finds the record does not include a medical opinion regarding the Veteran's ear condition. Furthermore, the Board finds there is additional medical evidence that is not of record. Specifically, the Veteran stated during the August 2021 hearing that he underwent surgery on his eardrums. The Board finds these medical records are not of record. Based on the above, the Board finds a remand is necessary to make an informed decision on these matters. The matters are REMANDED for the following action: 1. The RO must obtain any additional VA and private medical treatment records that have not been associated with the claims file for the Veteran's eye disorder and ear condition. This includes, but is not limited to, the Veteran's eardrum surgery. 2. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his eye disorder. The examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All opinions must be supported by a rationale. The examiner should address the following: (a.) The examiner must first address whether the claimed eye disorder clearly and unmistakably preexisted service and clearly and unmistakably was NOT aggravated by service. (b.) If the answer to (a.) is negative in any respect, provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's eye disorder manifested in service or is otherwise causally or etiologically related to his military service. If the examiner determines that the condition was a preexisting condition, the examiner must address the STR which found that the eye disorder was not preexisting and his entrance examination. 3. The RO should schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his ear condition. The examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. All opinions must be supported by a rationale. The examiner should address the following: Whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's ear condition manifested in service or is otherwise causally or etiologically related to his military service. The examiner must address the Veteran's lay statements, include those in the August 2021 hearing. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.