Citation Nr: 0724523 Decision Date: 08/08/07 Archive Date: 08/20/07 DOCKET NO. 06-38 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of corneal abrasions. REPRESENTATION Appellant represented by: John A. McMillion, Sr. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from October 1974 to March 1978 and from October 1982 to March 1985. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO) which confirmed and continued a previous denial of service connection for residuals of corneal abrasions, claimed as a bilateral eye condition. The Board notes that in an April 1987 rating decision, the RO previously denied a claim for service connection for an eye condition. Thus, the Board has recharacterized the issue on appeal as whether the veteran has submitted new and material evidence to reopen a claim of entitlement to service connection for residuals of corneal abrasions. The veteran testified at an April 2007 Board hearing; the hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The RO previously considered and denied a claim for service connection for eye condition in an April 1987 rating decision; the veteran did not perfect an appeal to that decision. 2. Evidence received since the April 1987 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of corneal abrasions. 3. The veteran does not have residuals of corneal abrasions etiologically related to active service. CONCLUSIONS OF LAW 1. The April 1987 rating decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2006); 38 C.F.R. § 20.1103 (2006). 2. Evidence received subsequent to the April 1987 rating decision is new and material; the claim for service connection for residuals of corneal abrasions is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.156(a), 20.1105 (2006). 3. Service connection is not warranted for residuals of corneal abrasions. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an August 2005 letter, VA informed the veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the veteran was responsible. VA also asked the veteran to provide any evidence that pertains to his claim. A May 2006 correspondence provided the veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was not received prior to the initial rating decision. Despite the inadequate timing of this notice, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was afforded an opportunity to submit additional evidence in support of his claims. The RO reconsidered the veteran's claims in a November 2006 supplemental statement of the case. There is no indication that any notice deficiency reasonably affects the outcome of this case. Thus, the Board finds that any failure is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2006). With respect to new and material evidence claims, VA must notify a claimant of the evidence and information that is necessary to (1) reopen a claim, and (2) establish entitlement to the underlying claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Thus, VCAA notice must include an explanation of the meaning of both "new" and "material" evidence, and must describe the particular type of evidence necessary to substantiate any service connection elements found to be insufficiently shown at the time of the prior final denial. The August 2005 notice letter provided the veteran with an explanation of the meaning of both "new" and "material" evidence. However, VA did not provide notice of the particular type of evidence needed to substantiate elements found to be insufficiently shown at the time of the February 1987 rating decision. Although VA did not provide the veteran with adequate notice in regard to new and material evidence, in light of the Board's favorable decision on that issue, the Board finds no prejudice to the veteran in proceeding with the issuance of a decision. In that regard, the pertinent information with regard to the claim of service connection was provided. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran's service medical records, VA and private treatment records, a VA examination, and a Board hearing transcript have been associated with the claims file. VA has provided the veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 1. New and Material Evidence The RO previously considered and denied the veteran's claim for service connection for an eye condition in an April 1987 rating decision. The veteran did not perfect an appeal. Thus, the RO's April 1987 rating decision is final. 38 U.S.C.A. § 7105 Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The legal standard of what constitutes "new and material" evidence was recently amended. This amendment is applicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001, and this claim was so filed. See 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2005). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the veteran's claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992). In July 2005, the veteran sought to reopen her claim of service connection. In a May 2006 rating decision, the RO considered the veteran's claim for service connection reopened based on new evidence received. The Board believes that the RO was ultimately correct in reopening the veteran's claim for service connection; nevertheless, the Board must address the issue of new and material evidence. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996) (Stating that the Board is required to determine whether new and material evidence has been presented before it can reopen a claim and re-adjudicate service connection or other issues going to the merit). In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. In the April 1987 final decision, the RO denied the veteran's initial claim for service connection because bilateral corneal abrasions were acute and transitory, while photophobia, myopia, and refractive error are constitutional or developmental abnormalities. Evidence of record at the time of the April 1987 rating decision included the veteran's service medical records and May 1985, May 1986, and March 1987 VA examination reports. Evidence relating to the veteran's present claim, which was received subsequent to the April 1987 rating decision includes (1) copies of service medical records; (2) private treatment records from Dr. J.D. dated August 2002 and November 2005; (3) private treatment records from the South East Eye Clinic dated March 2004 to January 2005, and March 2007; (4) a May 2006 VA examination report; and (5) an April 2007 Board hearing transcript. Private treatment records, a May 2006 VA examination report, and an April 2007 Board hearing transcript have not been previously submitted; thus, this evidence is new. The Board finds that the new evidence submitted is material. A May 2006 VA examination and private treatment records show that the veteran has current diagnoses of glaucoma and punctuate epithelial keratopathy. The Board's hearing transcript contributes to a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability. See Hodge v. West, 155 F.3d 1356 (1998). The Board finds that the new evidence, when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the veteran's claim. Accordingly, the Board finds that the veteran has submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for residuals of corneal abrasions. 2. Service Connection for Residuals of Corneal Abrasions Service medical records show that the veteran was seen for a corneal abrasions and eye irritation in service. August 1979, December 1979, and October 1981 routine medical examinations did not reflect any eye problems. Visual acuity was 20/20. A February 1978 ophthalmology clinic note indicates that the veteran was seen due to complaints of an 11 year history of being nearsighted. She had never worn glasses. Visual acuity was noted to be 20/20. The veteran was assessed with normal eyes. The veteran was seen in May 1984 for eye irritation. She was diagnosed with corneal abrasions. A June 1984 emergency room report shows that the veteran was seen for photophobia, burning, and blurring or halo bilaterally. The veteran was diagnosed with eye irritation. The veteran was subsequently referred to optometry, and was diagnosed with bilateral corneal abrasions. It was noted that the veteran had been rubbing her eyes. A March 1985 separation examination reflects uncorrected bilateral visual acuity of 20/20. The separation examination report noted that the veteran was assessed with corneal abrasions in June 1984 secondary to foreign bodies, and that she was hospitalized for 2 days with full recovery. May 1985 and May 1986 VA examinations show that the veteran was assessed with visual acuity of 20/70 in the right eye and 20/100 in the left eye. The eyes were noted to be normal with out evidence of disease or injury. The May 1986 VA examiner assessed the veteran with decreased visual acuity, probably secondary to refraction error. A March 1987 VA examination reflects possible myopia. Private treatment records from Dr. J.D. and from the South East Eye Clinic show that the veteran has a current diagnosis of glaucoma. (See Treatment Records from Dr. J.D., August 2002 and November 2005; Treatment Records from the South East Eye Clinic, March 2004 to January 2005 and March 2007.) The earliest diagnosis of glaucoma of record was in August 2002. The veteran was referred for a VA examination in May 2006 to determine if any currently diagnosed eye disorders are related to service. The May 2006 VA examination included a review of the claims file. The examiner stated that there was no evidence of corneal abrasions in either eye at that time. He diagnosed the veteran with punctuate epithelial keratopathy inferiorly in both corneas. He stated that this was due to dry eyes, which was due to normal age related changes. He also diagnosed the veteran with glaucoma in both eyes. The examiner stated that he could not comment on the cause of glaucoma without resorting to mere speculation. VA regulation provides that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Accordingly, this opinion is insufficient evidence of a nexus or relationship between currently diagnosed glaucoma and service. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, No. 04-0534 (U.S. Vet. App. June 15, 2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, No. 2007-4019 (U.S. Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The issue does not involve a simple diagnosis and the veteran is not reporting a contemporaneous disability. The veteran's assertions regarding symptoms of the claimed disability have not been supported by a later diagnosis of a medical professional. See Jandreau. The veteran does not currently have corneal abrasions nor has she had corneal abrasions during the course of the current appeal. See McClain v. Nicholson, No. 05-0468 (U.S. Vet. App. June 21, 2007), Further, corneal abrasions, unlike varicose veins has not been shown to be diagnosed by their unique and readily identifiable features and involves a determination 'medical in nature' with regard to the diagnosis which may not be diagnosed via lay observation alone. See Barr. Thus, the veteran's lay assertions are not competent or sufficient. The veteran was diagnosed with corneal abrasions in service; however, it was noted that the veteran had full recovery and no residuals of corneal abrasions were noted at separation. Shortly after service, the veteran was noted to have decrease in visual acuity and possible myopia. The decrease is visual acuity was not attributed to corneal abrasions. Post- service, the veteran was also diagnosed with glaucoma approximately 17 years after service. This diagnosis was not attributed to corneal abrasions. The veteran also has been diagnosed as having punctuate epithelial keratopathy which the examiner stated that due to dry eyes, due to normal age related changes. Thus, this diagnosed eye disorder was not attributed to corneal abrasions. The Board notes that only the issue of service connection for residuals of corneal abrasion is on appeal before the Board. Neither of the currently diagnosed eye disorders is etiologically related to inservice corneal abrasions; they are not residuals of the inservice corneal abrasions. Further, there is no current diagnosis of corneal abrasions. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); see also Gilpin. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. See Rabideau. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. ORDER The claim of entitlement to service connection for residuals of corneal abrasions is reopened; service connection for residuals of corneal abrasions is denied. ____________________________________________ J. Connolly Jevtich Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs