Citation Nr: 22017556 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-15 827 DATE: March 25, 2022 ORDER New and material evidence having not been received, the petition to reopen the claim of service connection for defective vision is denied. FINDINGS OF FACT 1. No appeal or new and material evidence was received within a year of the April 1979 rating decision, and the Appellant also did not appeal the February 2010 Board decision. 2. The new evidence received does not related to the unestablished nexus element and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening the claim of service connection for defective vision have not been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1100. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served in the Army National Guard from October 1975 to March 1976. 1. New and material evidence to reopen the claim for defective vision Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). The Regional Office (RO) issued a rating decision in April 1976 denying the Appellant's original claim of service connection for defective vision. The RO found the Appellant's vision disability existed prior to service and there was no evidence of an increase in severity during service. The Appellant was informed of his right to appeal but did not do so, and new and material evidence was not received within one year of the April 1976 rating decision. Therefore, the April 1976 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.202. The Appellant filed a petition to reopen the claim in March 2005. His petition was ultimately denied on appeal by the Board in a February 2010 decision that found new and material evidence had not been submitted to reopen the previously denied claim. The Board decision was final when issued, because the Appellant did not file a motion for reconsideration or appeal the Board decision to the Court of Appeals for Veterans Claims. See 38 C.F.R. § 20.1100. The evidence of record at the time of the February 2010 decision included service treatment and personnel records, private treatment records, and statements from the Appellant. Private treatment records showed the Appellant had defective vision rendering him legally blind. Service treatment and personnel records showed the Appellant was found to have poor vision in his left eye necessitating his discharge in March 1976. Since that time, new treatment records were added to the claims file, including October 2014 records showing diagnoses of cataracts and optic neuropathy and Dr. AKW's opinion that the poor vision in the Appellant's left eye is caused by optic neuropathy. This evidence is new in that it was not previously considered by agency decision makers. However, this new evidence is not material. The new evidence only relates to the fact that the Appellant has a current disability, which was already demonstrated; it does not relate to the unestablished issue of whether the Appellant's vision disability was caused or aggravated by his service. As such, the evidence does not raise a reasonable possibility of substantiating the claim, and the claim cannot be reopened at this time. The Board is grateful for the Appellant's honorable service, and this decision is not meant to detract from that service. Unfortunately, the Board concludes that new and material evidence has not been received to warrant reopening of the claim. R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.