Citation Nr: 21009481 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-30 429 DATE: February 22, 2021 ORDER New and material evidence having been submitted, the claim for service connection for blurred vision is reopened. REMANDED Entitlement to service connection for blurred vision is remanded. FINDINGS OF FACT 1. In a January 2010 rating decision, the Regional Office (RO) denied the claim for service connection for blurred vision. The Veteran filed a notice of disagreement (NOD), but he did not submit a timely substantive appeal following the issuance of a statement of the case (SOC) in April 2011. 2. The evidence received since the January 2010 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for blurred vision. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection blurred vision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received since the January 2010 rating decision is new and material as to the claim for service connection for blurred vision, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from June 1965 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. Law and Analysis In order to reopen a claim which has been denied by a final decision, the 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) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; 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 the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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). Furthermore, 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, to include by triggering the Secretary’s duty to assist. Id. at 118. In this case, the RO previously considered and denied the claim for service connection for blurred vision in a January 2010 rating decision. The RO noted that the Veteran’s service treatment records included a separation examination documenting that he required glasses for far vision. VA treatment records also showed that he had right-side visual changes manifested as floaters and blurred vision. However, there was no evidence showing that the Veteran had blurred vision as residual of a head injury in service. Therefore, the RO concluded that he did not have blurred vision that occurred in or was caused by his military service. The Veteran submitted a notice of disagreement (NOD) in March 2010, and the RO issued a statement of the case (SOC) in April 2011. However, he did not submit a substantive appeal. The Veteran also did not submit any additional evidence, and the January 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran later filed a new claim for service connection for blurred vision in August 2017. The evidence submitted since the January 2010 rating decision includes treatment records and February 2020 hearing testimony. During the hearing, the Veteran described a head injury in service and stated that an eye doctor told him that his blurred vision may be due to that injury. This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim (a possible nexus), and could reasonably substantiate the claim. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for blurred vision is reopened. However, as will be discussed below, the claim must be remanded for further development. REASONS FOR REMAND The Veteran has claimed that his blurred vision is related to an in-service head injury. As noted above, his service treatment records do show that he had impaired vision at the time of his separation from service, and treatment records document a current eye disorder. However, he has not been afforded a VA examination in connection with his claim. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any eye disorder that may be present. Moreover, during the February 2020 hearing, the Veteran testified that he had seen a private physician approximately two years earlier. However, the claims file does not contain such treatment records. Thus, on remand, the agency of original jurisdiction (AOJ) should attempt to obtain such records. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed blurred vision. A specific request should be made for the private treatment records identified during the February 2020 hearing. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any blurred vision disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including any available service treatment records, post-service medical records, hearing testimony, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. If the Veteran has refractive error, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service. For any eye disorder other than refractive error, the examiner should opine as to whether it is at least as likely as not that the disorder manifested during the Veteran’s military service or is otherwise causally or etiologically related to his military service, to include any symptomatology or injury therein. The Veteran has claimed that his blurred vision began in service due to a head injury. He has stated that his symptoms started gradually, beginning with headaches and eventually leading to blurred vision. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of consideration assistance to the Board. 3. After completing these actions, the AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.