93 Decision Citation: BVA 93-18471 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-42 658 ) DATE ) (RECONSIDERATION) ) ) THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for an eye disorder, manifested by defective vision. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD S. L. Kennedy, Associate Counsel INTRODUCTION The Board of Veterans' Appeals (Board) entered a decision in this case on July 11, 1985. A second Board decision on the same issue was subsequently entered by the Board on July 31, 1992, following the appeal of a new petition to reopen the previously denied claim. Subsequently, on October 27, 1992, the veteran filed a motion for reconsideration of the July 31, 1992, Board decision which denied service connection for an eye disorder manifested by defective vision. On January 5, 1993, reconsideration of the July 11, 1985, and July 31, 1992, decisions of the Board was ordered by the authority granted to the Chairman as provided by Section 7103(b) of Title 38, United States Code and the case is now before an expanded reconsideration section of the Board. This decision by the reconsideration section replaces the Board decisions of July 11, 1985, and July 31, 1992. Therefore, the Board will proceed as though the 1985 and 1992 Board decisions had never been entered, employing the same standard of review and considering the same evidence that would be appropriate for a section of the Board initially reviewing the appeal. Department of Veterans Affairs (VA) O.G.C. Prec. 89-90, 56 Fed. Reg. 1225 (1991); Boyer v. Derwinski, 1 Vet.App. 531, 535-36 (1991). The veteran served on active duty from August 1949 to February 1953. This matter came before the Board on appeal from a September 28, 1984, rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO), which found that no specific new evidence had been furnished by the veteran to change a previous unappealed rating decision of August 17, 1953, which denied service connection for macular degenerative changes, bilateral with optic atrophy changes. The notice of disagreement for this action was received by the RO on November 7, 1984. A statement of the case was issued on December 20, 1984. The substantive appeal was received by the RO on January 14, 1985. On February 8, 1985, the veteran was informed by the RO that his appeal and associated records were being transferred to the Board for appellate consideration. The case was certified for appeal on February 7, 1985. The appeal was subsequently transferred to the Board, and the veteran's accredited representative at the time, Disabled American Veterans, submitted additional written argument to the Board, dated May 13, 1985. By letter dated October 3, 1991, it was requested that Blinded Veterans Association be recognized as the veteran's accredited representative, and a VA Form 21-22, executed in favor of that organization was attached and acknowledged on December 10, 1991. On March 2, 1992, additional written argument on behalf of the veteran was received at the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the Board should find that new and material evidence has been submitted for purposes of reopening his claim of entitlement to service connection for an eye disorder. He argues that recent changes in VA policy since the initial unappealed rating determination in 1953 should be considered both new and material for purposes of reopening his claim and that service connection should therefore be granted in view of guidelines promulgated by the VA Office of General Counsel and in policy manual revisions that implemented those guidelines. He asserts that his claim was originally denied on the basis that retinitis pigmentosa is hereditary in origin and that since recent changes in VA policy now allow service connection for hereditary conditions in some circumstances, the benefit sought on appeal should be granted. 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 following reasons and bases, it is the decision of the Board that new and material evidence has been submitted sufficient to reopen the veteran's claim for service connection for an eye disorder. FINDINGS OF FACT 1. In an August 17, 1953, rating decision, the RO denied service connection for bilateral macular degenerative changes with optic atrophy changes. The veteran was provided notice of this decision by a letter dated August 24, 1953, and was apprised of his procedural and appellate rights; however, an application for review on appeal was not received within the subsequent one-year period. 2. Additional evidence submitted and considered, including recent changes in VA policy, subsequent to the RO's August 1953 unappealed rating decision is not redundant or cumulative, is relevant and probative and raises a reasonable possibility that the outcome could be changed based on a review of all the evidence of record. CONCLUSION OF LAW Evidence presented and considered since the final August 1953 rating decision denying the veteran's claim for service connection for an eye disorder is new and material, and thus his claim for entitlement to service connection for an eye disorder is reopened. Veterans Regulation No. 2(a), part II, paragraph III; Department of Veterans Affairs Regulation 1008; effective January 25, 1936, to December 31, 1957; 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION The RO initially denied entitlement to service connection for an eye disorder in August 1953. It appears that this decision was based, in pertinent part, on a finding of bilateral macular degenerative changes with optic atrophy changes diagnosed on a VA examination in July 1953 and which the RO found to be a constitutional or developmental abnormality and therefore, not a disability under the law as it existed at the time. The veteran was notified of this decision by letter dated August 24, 1953, and informed of his procedural and appellate rights pertaining to the denial. An application for review on appeal (now a notice of disagreement) with respect to the August 1953 decision was not received within the subsequent one-year period. Thus that decision is final. In essence, the veteran contends that his claim for service connection for an eye disorder manifested by defective vision should be granted based on the evidence submitted since 1953 and in light of changes in VA policy regarding diseases such as retinitis pigmentosa, considered hereditary in origin. He asserts that this evidence should, at the very least, be considered sufficient for purposes of reopening his claim. The law grants a period of one year from the date of notice of the result of the initial determination for the filing of an application for review on appeal. If a timely application for review on appeal is not filed, that decision becomes final and is not subject to revision unless evidence submitted in support of a reopening of that claim is "new and material." Veterans Regulation No. 2(a), part II, paragraph III; Department of Veterans Affairs Regulation 1008; effective January 25, 1936, to December 31, 1957; 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1992). In this respect, the United States Court of Veterans Appeals (Court) has provided guidelines for determining whether recently presented or secured evidence may be considered "new and material," and has established a two-part analysis that the Board must utilize where a veteran seeks to invoke this exception to the rule of finality of Board decisions. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). "New" evidence has been defined as that which is more than merely cumulative, and "material" evidence is that which is relevant and probative, and finally, new and material evidence must be evidence that presents a reasonable possibility of changing the outcome of the case when considered in the context of all of the evidence of record, new and old. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Next, if the Board determines that new and material evidence has been presented or secured, the case is reopened, and the Board must evaluate the merits of the veteran's claim in light of all of the evidence of record, both new and old. Manio, 1 Vet.App. at 145. In this regard, the Board has determined that the evidence presented or secured and considered since the August 1953 unappealed rating decision meets the "new and material" test for purposes of reopening the veteran's claim; however, the Board has also determined that the second portion of the test as outlined in Manio, that of evaluating the merits of the veteran's claim in light of all the evidence of record, both new and old, requires remand to the RO for initial adjudication in light of recent Court precedent. See Bernard v. Brown, 4 Vet.App. 384 (1993). To understand the decision reached by the Board this date, a brief summary of the evidence considered by the RO in August 1953 is necessary. The evidence considered included the veteran's service medical records and a July 1953 report of VA examination. Service medical records showed that on enlistment examination in August 1949, visual acuity was measured in both eyes as 20/100, correctable to 20/40, bilaterally. These records also include a medical board proceeding report dated December 26, 1952, in which it was recommended that the veteran appear before a Physical Evaluation Board due to bilateral heredito-familial degeneration of the macula and degeneration of the retina. It was determined that the veteran's vision was below the minimum visual standards as set forth in pertinent Army regulations and he was considered industrially blind by the visual standards of the American Medical Association. It was determined that neither glasses or any form of acceptable therapy would restore his vision. It was indicated that the condition developed and/or progressed while the veteran was on active duty thereby indicating that the condition was incurred in the line of duty. Subsequently, the veteran was placed on the temporary disability retired list by the Department of the Army. In 1953, the RO also considered a report of the VA examination conducted in July 1953, and specifically the report of eye examination which noted macular degenerative changes, bilateral, with optic atrophy changes. The veteran's uncorrected visual acuity was reported at 20/200, bilaterally, correctable to 20/100 plus on the right and on the left to 20/100 with no further improvement obtained. Subsequent to the August 1953 appellate rating decision, the veteran has presented additional evidence for purposes of reopening his claim. In this regard, we do note that there is significant medical evidence assembled after 1953 which meets the requirement of newness and materiality for purposes of reopening the veteran's claim, particularly in light of changes in VA policy regarding retinitis pigmentosa and hereditary diseases. This evidence includes medical documentation regarding placement of the veteran on the permanent disability retired list; a statement from a private physician dated in July 1984, in which it was indicated that the veteran had a form of bilateral inverse retinitis pigmentosa; and VA outpatient treatment records dated between December 1984 and April 1991, and which includes records of treatment for retinitis pigmentosa. The Board finds that this medical evidence, in conjunction with changes in VA policy, is sufficient to reopen the veteran's claim under the analysis as promulgated in Manio. The Board is bound by applicable statutes, VA regulations, and precedent opinions of the Office of the General Counsel (OGC), except to the extent they are inconsistent with binding judicial decisions. 38 U.S.C.A. § 7104(c) (West 1991); 38 C.F.R. § 19.5 (1992); Bernard, 4 Vet.App. at 394. In this respect, there are several significant precedent opinions of the OGC which have been issued since the 1953 unappealed rating decision which merit discussion and consideration in resolving the issue on appeal. The OGC has held that service connection may be granted for diseases of congenital, developmental, or familial origin. VA O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990) (formerly Op. G.C. No. 1-85 (March 15, 1985)). Moreover, the OGC has held that service connection may be granted pursuant to 38 C.F.R. § 3.309(a) when a hereditary or familial disease first becomes manifest to a compensable degree within the presumptive period following discharge so long as the provisions of 38 C.F.R. § 3.307 are satisfied. VA O.G.C. Prec. Op. 1-90, 55 Fed. Reg. 27757 (1990). Finally, it has been held that not only may service connection be established for hereditary disease which first manifests itself during service, but also that which preexists service and progresses at an abnormally rate during service. VA O.G.C. Prec. Op. 67-90, 55 Fed. Reg. 43253 (1990) (formerly Op. G.C. 8-88 (Sept. 29, 1988)). There have also been changes in the VA Adjudication Procedure Manual, M21-1, which merit consideration in the reopening of the veteran's claim. While the Board is not bound by Department manuals, circulars, or similar administrative issues (38 C.F.R. § 19.5 (1992)), the provisions of these documents provide guidance regarding VA policy and the adjudication of specific issues. While the Board does not address the issue of whether the pertinent manual changes promulgated since 1953 are those of the nature contemplated in significant Court decisions, they provide strong support for the reopening the claim in this case. In this regard, recent changes found in M21-1, Part VI, paragraph 7.59(f) must be considered. VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.59(f) (Mar.17, 1992). Subsection (1) of this paragraph regarding service connection for diseases of congenital, developmental or familial (hereditary) origin, including retinitis pigmentosa is especially pertinent in this case and is essentially a restatement of the holding of VA O.G.C. Prec. Op. No.1-90 (Mar. 16, 1990), discussed above. Moreover, it is significant to note for the record that the Court has held that not only is the Board required to apply changes in substantive rules to claims which were filed prior to those changes, but has also held that in some instances changes in M21-1 are essentially such substantive rules, having the force of law and equivalent to Department regulations. See Hayes v. Brown, 5 Vet.App. 60 (1993) (citing Karnas v. Derwinski, 1 Vet.App. 308 (1991); Hamilton v. Derwinski, 2 Vet.App. 671 (1992)). The Board need not, however, address this question in resolving the issue currently on appeal. Clearly, the pertinent precedent opinions of the OGC were issued after the 1953 decision. Moreover, since 1953, the pertinent paragraphs of the VA Adjudication Procedure Manual have been superseded and/or replaced, including M21-1, Part I, paragraph 50.09(d) (Jan. 3, 1986). The Board finds that these changes combined with the additional medical evidence submitted by the veteran since the August 1953 unappealed rating decision, is new and material. The evidence is not cumulative or redundant, it is relevant and probative, and it presents a reasonable possibility of changing the outcome of the case, when considered in the context of all of the evidence of record, new and old. Therefore, the veteran's claim for service connection for an eye disorder, manifested by defective vision is reopened. ORDER The veteran's claim for service connection for an eye disorder, manifested by defective vision is reopened. REMAND The Board has determined that new and material evidence sufficient to reopen the veteran's claim of entitlement to service connection for an eye disorder has been submitted. The veteran's claim has therefore been reopened, and the Board must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). However, before the Board can proceed with a review of the merits of the appeal, a determination must be made whether it would be prejudicial to the veteran for the Board to proceed. The Court has outlined a four-part test to determine whether the Board is permitted to adjudicate the current claim without violating the veteran's statutory and regulatory procedural rights by addressing a question not considered by the RO. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). In this regard, the Board must consider whether (1) the claimant has been given adequate notice of the need to submit evidence or argument on the question at bar; (2) an opportunity to submit such evidence and argument and (3) to address that question at a hearing, and, if not, (4) whether the claimant has been prejudiced thereby. Id. Based on the changes in VA policy and the evidence assembled since 1953, the Board has determined that the veteran's statutory and regulatory procedural rights would be violated for the Board to consider the merits of the claim particularly in light of the changes regarding service connection for diseases of congenital, developmental or familial (hereditary) origin. We are of the opinion that these changes when considered with the additional medical evidence presented since the August 1953 unappealed rating decision are so significant that a remand is required to safeguard the veteran's procedural right to notice of the need to submit evidence or argument and opportunity to submit such evidence or argument. It is important to note that this case involves complex medical and legal issues. In order to assure procedural fairness to the appellant, these issues must be fully developed, and the appellant must be afforded notice and an opportunity to be heard in the course of their development. Other than remand for consideration by the RO of the merits of this claim, the Board has determined that no other legal recourse is feasible when the facts of this case are considered along with governing VA law and regulation, and pertinent Court precedent opinions. In view of the foregoing, we have determined that a remand in this case is necessary in order to afford the RO the opportunity to adjudicate the claim on the merits, and to provide adequate notice and opportunity to respond on behalf of the veteran. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should consider the veteran's claim for service connection for an eye disorder in light of all the evidence of record, both new and old. In connection with this, the RO should consider all of the veteran's contentions, including those regarding service incurrence and/or aggravation of retinitis pigmentosa in light of governing VA law and regulations, and including precedent opinions of the United States Court of Veterans Appeals and precedent opinions of the Office of General Counsel. Pertinent changes in the VA's Adjudication Procedure Manual, M21-1, should also be considered to provide guidance regarding service connection for diseases of congenital, developmental or familial (hereditary) origin, to include retinitis pigmentosa. 2. If the determination remains adverse to the appellant, he should be provided a supplemental statement of the case that fully addresses the issue of service incurrence and/or aggravation of hereditary diseases. This should contain a summary of additional evidence submitted and considered, citations of applicable laws and regulations, and the reasons for the decision, as supported by independent medical evidence sufficient to explain the decision. The veteran and his representative should be afforded an opportunity to respond thereto. The record should then be returned to the Board for further appellate consideration. No action by the veteran or representative is necessary until proper notification. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. The purpose of this REMAND is to afford the veteran due process of law. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 C. D. ROMO G. H. SHUFELT E. M. KRENZER PAUL M. SELFON, M.D. U. R. POWELL LAWRENCE M. SULLIVAN (CONTINUED ON NEXT PAGE) 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).