92 Decision Citation: BVA 92-18174 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-49 780 ) DATE ) ) ) THE ISSUE Entitlement to service connection for a right eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. N. Schwartz, Counsel INTRODUCTION The veteran served on active duty from January 1943 to December 1945. This matter came before the Board on appeal from an October 1990 rating decision from the Baltimore, Maryland, Regional Office. Subsequently, the case was referred to the St. Petersburg, Florida, Regional Office. A notice of disagreement was dated July 25, 1991. A statement of the case was mailed on September 11, 1991. A substantive appeal was received on September 30, 1991. The case was received at the Board on November 29, 1991, and docketed on December 2, 1991. The case was referred to the veteran's representative, Disabled American Veterans, on December 3, 1991. That organization submitted additional written argument to the Board on March 25, 1992. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the prior rating decision which denied service connection for a right eye disability was clearly and unmistakably erroneous. It is averred that the veteran's visual acuity was 20/200, right, at time of induction; and that there was a rapid increase in myopia producing uncorrectable visual impairment. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the functional equivalent of new and material evidence has been submitted and that the claim for service connection for right eye disability is reopened. FINDINGS OF FACT 1. By rating decision of 1946, service connection for a right eye disability was denied. The veteran was informed of that determination and did not timely appeal. 2. The provisions of VA Manual M21-1 constitute the functional equivalent of evidence which bears directly and substantially on the issue of entitlement to service connection for a right eye disability, and provides a basis for reopening the claim. CONCLUSION OF LAW The claim for service connection for a right eye disability is reopened. 38 U.S.C. § 5108 (1992); 38 C.F.R. § 3.156; Akins v. Derwinski, 1 Vet.App. 228 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 1946, a regional office addressed the issue of entitlement to service connection for a right eye disability. At that time, the evidence consisted of the veteran's service medical records. It was noted that at induction, the veteran's visual acuity of the right eye was 20/200, correctible to 20/40. At discharge, the right eye had light perception only. There was no evidence of injury or trauma in service, and that the increase was considered to be due to the natural progress of the disease. Service connection was denied, and the veteran was informed of the determination in April 1946. The veteran did not appeal that determination. Under governing law and regulations, prior decisions are final, and the claim may not be reopened in the absence of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. The issue before the Board is whether new and material evidence sufficient to reopen the claim has been presented. Manio v. Derwinski, 1 Vet.App. 140 (1991). Since the prior decision, the veteran has petitioned to reopen the claim. In support of the claim, the veteran submitted a private statement dated in 1990. However, when viewed in the context of the issue of entitlement to service connection, the medical statement is not new and material. Colvin v. Derwinski, 1 Vet.App. 171 (1991). However, the United States Court of Veterans Appeals has also held that the factual predicate demonstrated by presumptions established by law or regulations have an important evidentiary value and, to that extent, are the functional equivalent of evidence and may provide a basis for reopening the claim. Akins v. Derwinski, 1 Vet.App. 228 (1991). Akins also addressed the issue of service connection due to aggravation. We further note that since the 1946 rating decision, the Department of Compensation and Pension adopted the M21-1 Manual. It was noted in that manual that: Defects of form or structure of the eye of congenital or developmental origin, such as regular astigmatism, myopia (other than malignant or pernicious), hyperopia and presbyopia, will not, in themselves, be regarded as disabilities and may not be service connected on the basis of incurrence or progress during service. Long-established policy permits service connection with such unusual developments as choroidal degeneration, retinal hemorrhage or detachment, or rapid increase of myopia (emphasis added), say 2 diopters in a year, producing uncorrectable impairment of vision. When the provisions of the VA manual are considered in light of the guidance provided by the United States Court of Veterans Appeals, it appears that we have been presented with the functional equivalent of evidence, and that the claim must be reopened. Akins. ORDER The claim for service connection for a right eye disability is reopened. REMAND Since the Board has determined that the claim for service connection for a right eye disability has been reopened, the regional office must have an opportunity to review all the evidence of record, including the guidance provided by VA Manual M21-1 and by the Court in Akins. If necessary, the regional office should confirm that the veteran has light perception only, and render a decision as to whether the decrease in visual acuity contemplates aggravation within the meaning of the VA manual. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (Member temporarily absent) URSULA R. POWELL LAWRENCE M. SULLIVAN *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. Under 38 U.S.C. § 7252 (1992), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.