93 Decision Citation: BVA 93-16079 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-07 001 ) DATE ) (RECONSIDERATION) ) ) THE ISSUES 1. Whether the rating decision of September 25, 1947, denying service connection for keratoconus, involved clear and unmistakable error. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for keratoconus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Guido, Jr., Counsel INTRODUCTION The appellant-veteran served in the active military service from February 1946 to June 1947. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 22, 1989, rating decision of the Salt Lake City, Utah, Department of Veterans Affairs (VA) Regional Office (RO). The notice of disagreement was filed in September 1989. The statement of the case was sent in December 1989 and the substantive appeal was received that same month. The appeal was docketed at the Board in April 1990. The Board entered a decision in this matter on October 15, 1990. Subsequently, the veteran timely filed a Notice of Appeal with the United States Court of Veterans Appeals (Court). He also filed a motion for reconsideration with the Board. In April 1991, the veteran changed his representative in favor of Disabled American Veterans (DAV). In October 1991, pursuant to 38 U.S.C.A. § 7103(b) (West 1991), the Chairman of the Board of Veterans' Appeals granted the motion for reconsideration. The Board on its own motion requested an opinion from an independent medical expert (IME) in February 1992. In compliance with the Court's order of January 31, 1992, VA advised the Court of the status of the proceedings before the Board. In March 1992 the Court, having earlier stayed the proceedings at the veteran's request, ordered that the matter be remanded for reconsideration by the Board. The IME's initial opinion was received in March 1992, and a clarifying opinion from the IME was received in September 1992. In January 1993, the veteran's representative, DAV, reviewed the complete record, including a medical opinion from S. R. Young, M. D., the veteran having waived initial consideration of that opinion by the RO, and presented additional argument in March 1993. This decision by the Reconsideration Section replaces the Board's October 15, 1990, decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that keratoconus is a disease, not a defect, of congenital, developmental or familial origin, which is subject to service connection on the basis of either direct incurrence or aggravation in accordance with VA's Office of General Counsel opinion designated O.G.C. Prec. Op. No. 82-90, 55 Fed. Reg. 45,711 (1990) (previously issued as General Counsel Opinion 1-85, dated March 5, 1985). He argues that as the disease is subject to service connection he is entitled to the presumption of soundness or in the alternative the presumption of aggravation, which have not been previously considered and which provide a basis for reopening the claim, citing Akins v. Derwinski, 1 Vet.App. 228, 230 (1991). It is asserted that the presumption of soundness is not rebutted by clear and unmistakable evidence as keratoconus was not shown on entrance examination and the veteran's postservice signed statement relating to the diagnosis of keratoconus before service has no force and effect under 38 C.F.R. § 3.304(b)(3) (1992). Alternatively, it is asserted that the presumption of aggravation of a preservice disability is not rebutted by clear and unmistakable evidence as there is no objective way to determine the natural progress of the disease based on medical facts and principles. The IME's credibility is challenged as it is alleged that the physician was on staff at a VA hospital. It is argued that, as keratoconus was not noted on entrance examination, as Dr. Young has stated that it can have a rapid onset or progression, and as there is no clear cut medical answer in this case, the record supports a grant of direct service connection, applying the benefit-of-the-doubt standard. In view of the Board's decision on the issue of whether the veteran has submitted new and material evidence to reopen his claim, the Board defers action on the issue of whether the rating decision of September 25, 1947, denying service connection for keratoconus, involved clear and unmistakable error, until the claim of service connection for keratoconus has been adjudicated on the merits. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims folder, and for the reasons and bases herein set forth, it is the decision of the Board that the veteran has submitted new and material evidence to reopen his claim of service connection for keratoconus. FINDINGS OF FACT 1. In a September 25, 1947, rating decision, the RO denied the veteran's claim of service connection for a condition affecting the eyes, myopic astigmatism with conical corneas (keratoconus); after notification of the denial, including notice of the right to appeal and the time limit for appeal, was sent to him, he did not file an application for review on appeal within one year thereafter, and the rating decision became final. 2. The December 1992 opinion of Dr. S. R. Young, associated with the veteran's application to reopen the claim of service connection for keratoconus, is not cumulative of other evidence in the record and is relevant to and probative of the issue of whether keratoconus had its onset in service. CONCLUSIONS OF LAW 1. The rating decision of September 25, 1947, denying the veteran's claim of service connection for myopic astigmatism with conical corneas (keratoconus) is a finally adjudicated claim. Veterans Regulation No. 2(a), pt. II, para. III; Department of Veterans Affairs Regulation 1008; effective January 25, 1936, to December 31, 1957, (the substance of the provisions pertaining to finality of a RO rating decision are currently codified as 38 C.F.R. §§ 3.104(a), 3.160(d) (1992)). 2. The December 1992 opinion of Dr. S. R. Young, presented in conjunction with the veteran's application to reopen the claim of service connection for keratoconus, is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The service medical records disclose that on entrance examination in February 1946 myopic astigmatism was noted. Visual acuity was 20/200 in each eye, corrected to 20/20. On eye examination in April 1946, visual acuity was 20/70 in each eye, corrected to 20/25 in the right eye and 20/40 in the left eye. Slit-lamp examination revealed an increase in corneal curvature and vertical streaking of the Descemet's membrane. The diagnosis was conical cornea (keratoconus), bilateral. In December 1946 and March 1947, the veteran's visual acuity decreased and could not be improved with correction beyond about 20/70 and 20/100. From March to May 1947 he was evacuated through hospital channels from an overseas duty station to the United States because of the inability to obtain satisfactory glasses and various visual complaints. In May 1947, examination revealed bilateral conical cornea and retinoscopic examination showed marked irregular astigmatism due to conical corneas. A Board of Medical Officers was then convened and found the veteran unfit for duty due to congenital, bilateral conical cornea which existed prior to entering service and which was not aggravated by active service. The veteran subsequently received a disability discharge because of the condition. In a September 25, 1947, rating decision, based on the service medical records, the RO denied the veteran's claim of service connection for a condition affecting the eyes, myopic astigmatism with conical corneas (keratoconus). That same month, the RO notified the veteran that the claim had been denied because the condition was a congenital or developmental abnormality and not a disability within the meaning of the [VA] law. After notification of the denial, including notice of the right to appeal and the time limit for appeal, was sent to him, he did not file an application for review on appeal within one year thereafter. The rating decision then became final. Veterans Regulation No. 2(a), pt. II, para. III; Department of Veterans Affairs Regulation 1008; effective January 25, 1936, to December 31, 1957, (the substance of the provisions pertaining to finality of a RO rating decision are currently codified as 38 C.F.R. §§ 3.104(a), 3.160(d) (1992)). In July 1989, the veteran sought to reopen his claim of service connection for keratoconus in light of the VA's Office of General Counsel opinion designated VA O.G.C. Prec. Op. No. 82-90, 55 Fed. Reg. 45,711 (1990) (previously issued as Op. G.C. 1-85, dated March 5, 1985) which is also incorporated in the VA's Veterans Benefits Administration Manual, M21-1, Part VI, ch. 7, para. 7.59(f) (Mar. 1992) (rescinding and superceding M21-1, ch. 50., para. 50.78(f)). In the aforementioned precedent opinion, it was held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin. In the rating decision of August 22, 1989, the RO continued the denial of service connection for keratoconus. In its decision, the RO agreed with the veteran's argument that the original basis for denying the claim as a congenital or developmental condition was no longer valid applying O. G. C. Precedent Opinion 82-90. In pertinent part, the RO then held that no new and material evidence had been submitted which would warrant changing the prior decision. A finally adjudicated claim may be reopened only upon the submission of "new and material evidence." 38 U.S.C.A. § 5108 (West 1991). In considering whether a claim may be reopened based upon new and material evidence, a two step analysis must be performed. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence presented or secured since the prior final disallowance of the claim is "new and material". Second, if the evidence is new and material, the new evidence must be reviewed "in the context of" the old evidence to determine whether the prior disposition of the claim should be altered. See Bernard v. Brown, No. 91-1082, slip op. at 5-6, (U.S. Vet. App. Mar. 22, 1993) (citing Jones v. Derwinski, 1 Vet.App. 210, 215 (1991). In Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), the Court defined the statutory terms "new" and "material". Evidence is "new" if it is not "merely cumulative of other evidence on the record." "Material" evidence is relevant and probative of the issue at hand and there is "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." In determining whether evidence is new and material, "the credibility of the evidence must be presumed." Justus v. Principi, 3 Vet.App. 510, 513 (1992). The appellant provided the following additional evidence to reopen his claim: 1) an extract from a medical text, defining keratoconus as an inherited disease; 2) a research index referring to keratoconus as congenital; 3) a November 1990 opinion of J. S. Raymond, M. D., who stated that the induction diagnosis of myopia and astigmatism did not constitute a diagnosis of keratoconus; 4) copies of previously considered service medical records ; 5) Medline Express index for keratoconus; 6) a photocopied article from the Journal of the American Optometric Association presenting a study of Thalasselis' syndrome and other theories on keratoconus; and 7) a December 1992 opinion of S. R. Young, M. D., who stated that it cannot be definitely determined from the medical evidence in the file that keratoconus was present before entry into service and that the progression of keratoconus in service was likely due to its own natural course. Of these, copies of the service medical records and the November 1990 opinion of J. S. Raymond, M. D., do not constitute new evidence. The service medical records are duplicates of identical records previously considered. The opinion of Dr. Raymond is cumulative as the service medical records already show that keratoconus was not noted on entrance examination. While the rest of the evidence is new, the references to inherited or congenital keratoconus and the theory of Thalasselis' syndrome and the Medline Express index are not material as they do not provide any information as to whether keratoconus in this particular case was incurred in or aggravated by service. Only the opinion of Dr. Young constitutes new and material evidence because it is relevant and probative of whether keratoconus was directly incurred in service and it is sufficient to create a reasonable possibility of a change in the outcome of the prior denial. As the veteran has submitted new and material evidence, he is entitled to have his claim readjudicated on the basis of all the evidence of record, both old and new. ORDER The claim of service connection for keratoconus is reopened. REMAND In Bernard v. Brown, No. 91-1082, slip op. at 13-14, (U.S. Vet. App. Mar. 22, 1993), the United States Court of Veteran Appeals held that before the Board addresses in a decision a question that had not been addressed by the RO (in this instance, the RO denied the claim to reopen and the Board finds the evidence new and material, so that the claim must be considered de novo), it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address the question at a hearing, and, if not, whether the claimant has been prejudiced thereby. In light of the above, the Board determines that the RO had not considered all the evidence of record in making its determination and for the Board to decide a question that the RO had not decided might be prejudicial in this case. The Board, therefore, REMANDS the matter to the RO for the following action: Readjudicate the claim of service connection for keratoconus considering all the evidence of record, both old and new. If the determination remains adverse to the veteran, then prepare a supplemental statement of the case to assure full notification of the status of the case, including a summary of the evidence, including the March and September 1992 IME opinions and the December 1992 opinion of Dr. Young, and of the applicable laws and regulations and the reason for the determination; give him an opportunity to submit evidence and argument and to address the issue at a hearing, if he desires one; and after he has been provided the full benefits of these procedural safeguards, the case should be returned to the Board. (CONTINUED ON NEXT PAGE) BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 J. F. GOUGH W. H. YEAGER, JR., M.D. J. E. DAY C. P. RUSSELL H. M. McALLISTER, M.D. J. W. BLASINGAME *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) 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.A. § 7252 (West 1991), 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. 38 C.F.R. § 20.1100(b) (1992).