BVA9508453 DOCKET NO. 92-55 411 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether the appellant has submitted new and material evidence sufficient to reopen a claim for service connection for bilateral visual impairment. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty form March 1959 to May 1962. This appeal is from a June 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for residuals of a head injury. The only disorders the appellant has alleged to be the residuals of a head injury are a scar of the forehead and bilateral visual impairment. His response to a specific request from the RO to state whether he sought service connection for any residuals of sequelae of a head injury other than a scar of the scalp and visual impairment elicited a reply that was unresponsive to the question; he submitted additional evidence related to his ophthalmologic status. In a rating decision of September 1994, the RO granted service connection for a scar of the scalp as a residual of a head injury. Whereas the appellant has not informed VA of any claims other than those for the scar and the visual impairment, the Board deems there to be no claims for compensation for any other disabilities at issue. Whereas the claim for service connection for the scar has been granted, there is no issue on that matter regarding which the Board can make an appellate decision. The sole issue on appeal is as stated, supra. The Board takes no further action regarding the issue of service connection for residuals of a head injury, other than as it pertains to visual impairment. The Board notes that the appellant has filed a notice of disagreement with the noncompensable rating assigned to his forehead scar in the September 1994 rating decision, expressed as a request for reconsideration for a higher percentage for residuals of a head injury. That matter has not been developed for appellate review. It is not inextricably intertwined with the claim for service connection for visual impairment, and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has submitted new and material evidenced that his bilateral visual impairment was incurred in or aggravated by service as a result of a head injury sustained in service, and his claim should be reopened and granted. He argues that he is entitled to the presumption of soundness in the determination of his claim. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen a claim for bilateral visual impairment. FINDINGS OF FACT 1. The RO denied a claim for service connection for an eye condition claimed as caused by a head injury in service in a rating decision of December 1987. 2. The RO notified the appellant of the December 1987 rating decision and of his appellate rights in a letter of January 1988. 3. The appellant did not appeal the December 1987 disallowance of his claim for service connection for an eye condition within one year of the date of notice of the disallowance. 4. The claim for disability compensation filed by the appellant in March 1991, and the rating decision of June 1991 are for the same disability as was claimed and adjudicated in the December 1987 rating decision. 5. The appellant has submitted evidence subsequent to the December 1987 rating decision confirming his current ophthalmologic status that is uninformative about the time of onset of currently diagnosed ophthalmologic disorders, or the question whether visual impairment is related to any event in service. CONCLUSIONS OF LAW 1. The rating decision of December 1987, denying service connection for visual impairment, is final. 38 U.S.C.A. §§ 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302 (1994). 2. New and material evidence to reopen a claim for service connection for bilateral visual impairment has not been presented or secured. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In December 1987, the RO denied a claim for service connection for an eye condition that the appellant alleged resulted from blows to the head by military police. The evidence then of record comprised service medical records showing, in pertinent part, myopic astigmatism treated with glasses since age 15 and suturing of a laceration of the scalp on December 3, 1961; the appellant's Report of Accidental Injury (VA Form 21-4176) reporting blows to the head by military police resulting in loss of consciousness and repair of a laceration with stitches; and an October 1987 statement from S.A. Uriu, M.D., stating the appellant had had a progressive loss of vision for 30 years, at least since his time in service; the impression was hereditary retinal dystrophy, legally blind. In March 1991, the appellant submitted another Application for Compensation (VA Form 21-526) for "sclerosis of the retina caused by head injury on December 3, 1961." He submitted a statement attesting to loss of consciousness due to a blow to the head. He also submitted a duplicate of Dr. Uriu's October 1987 statement, with additional treatment records not previously submitted. The records showed tapeto-retinal degeneration, possible Stargardt's disease of unknown etiology, probably inherited, stable. Office notes indicated a history of 20/40 vision in service and gradual decrease in visual acuity since then. The remainder of the record pertains to current diagnosis and treatment. The appellant had a VA ophthalmologic examination in October 1993, which diagnosed macular scarring and showed limitations of visual field. The appellant submitted an examination report and administrative memorandum from the New York Commission for the Blind and Visually Handicapped. The examination report by G.L. Pinto, M.D., stated the extent of the appellant's corrected visual acuity and selected from among several causes listed on the form, general infectious, degenerative and other specified diseases including ocular and local infections. A statement from J. Paul, M.D., shows that the appellant qualifies for legal blindness status. The RO determined that the appellant had not submitted new and material evidence, and declined to reopen the claim for service connection for bilateral visual impairment. The United States Court of Veterans Appeals (the Court) has summarized case law on claims to reopen previously and finally disallowed claims: [T]he RO or BVA must conduct a two-step analysis. First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material". If it is, the RO or Board must then review the new evidence "in the context of" the old to determine whether the prior disposition of the claim should be altered. "New" evidence is evidence which is not "merely cumulative" of other evidence in the record. Evidence is "material" when it is relevant to 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." Bernard v. Brown, 4 Vet.App. 384, 389 (1993) (citations omitted). Additionally, the evidence to be reviewed for sufficiency to reopen a claim is all the evidence submitted since the most recent denial of the claim on its merits. Glynn v. Brown, 6 Vet.App. 523 (1994). The appellant has repeatedly asserted his belief that his visual impairment started with and resulted from blows to the head sustained in service. Even taking the appellant's statement that he sustained blows in the head in service as credible, Justus v. Principi, 3 Vet.App. 510 (1992), the appellant's statement of opinion regarding the medical causation of his visual impairment is not cognizable evidence and cannot be new and material to reopen a claim. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The remainder of the evidence pertains to current diagnosis and treatment. It contains no information connecting the current diagnosis and findings with the appellant's service. The single notation in Dr. Uriu's records that the appellant reported 20/40 vision in service with gradual reduction in acuity is of such slight probative value it cannot produce a reasonable possibility of changing the prior result of adjudication of this claim, Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), especially in light of the same doctors impression that the cause is hereditary. See Villalobos v. Principi, 3 Vet.App. 450 (1992) (adverse evidence cannot be new and material). In sum, the evidence submitted in an attempt to reopen the claim, although not previously of record, is not "new and material evidence." 38 C.F.R. § 3.156(a) (1994). The clear preponderance of the evidence is against finding that the appellant has submitted new and material evidence to reopen a claim for service connection for visual impairment. Finally, the Board notes that the presumption of soundness, 38 C.F.R. § 3.304 (1994), is an evidentiary rule applicable to the evaluation of evidence in determining the merits of a claim. Whereas the Board does not reopen the claim, it does not reach the merits, and the presumption of soundness is not for application. ORDER New and material evidence not having been presented or secured to reopen a claim for service connection for bilateral visual impairment, the benefit sought on appeal remains denied. C. P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.