BVA9504355 DOCKET NO. 93-07 278 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an eye disorder. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. A. Dowdell, Associate Counsel INTRODUCTION The veteran served on active duty from November 1940 to October 1944. Service connection for an eye disorder was denied by a rating action dated in September 1984. The veteran was advised of this determination by a letter dated in December 1984. No appeal was taken from that determination. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an October 1992 rating decision from the St. Petersburg, Florida, Regional Office (RO), which denied service connection for tinnitus. This appeal also arises from a November 1992 rating decision, which held that new and material evidence had not been received to reopen the veteran's claim for service connection for an eye disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he suffers from an eye disorder and tinnitus which had their onset during his period of active service. 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 there is a new claim for service connection for retinopathy. FINDINGS OF FACT 1. In September 1984, service connection was denied for a generic, nonexistent eye disorder. 2. The 1984 denial did not consider presumptive service connection (as no presumptive disability was shown). 3. Since the 1984 determination, the veteran has submitted evidence that he has retinopathy and edema of the optic nerve. 4. In order to sustain the prior denial of service connection, different laws and regulations would have to be considered. CONCLUSION OF LAW The claim for service connection for retinopathy is a new claim. Odiorne v. Principi, 3 Vet.App. 456 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's current appeal involves an attempt to reopen his claim for entitlement to service connection for an eye disorder. Service connection for an eye disorder was denied by a rating decision dated in September 1984. The veteran did not appeal that determination. At the time of the September 1984 RO denial, the evidence included the service medical records, statements from the veteran's friends dated in March 1979, the reports of Department of Veterans' Affairs (hereinafter VA) examinations conducted from November 1946 to April 1979, private hospitalization and treatment records dated from November 1978 to May 1984, and private medical statements dated from April 1963 to September 1984. The service medical records do not show that an eye disorder was either treated or diagnosed during the veteran's period of active service or that he complained of any such problems during service. The report of separation medical examination performed in October 1944 showed that the veteran's eyes were normal and that his visual acuity without correction was 20/20 in both eyes. The report does not indicate any inservice history of an eye disorder or that he had any complaints pertaining to such problems. The report of VA examination conducted in November 1946 demonstrated that the veteran's visual acuity was 20/20 in both eyes. There was no findings relative to an eye disorder. The reports of VA psychiatric examinations conducted in January 1949 and April 1952 did not refer to a diagnosis indicative of an eye disorder. The September RO denial of service connection for the eye disorder was based on findings that an eye disorder had not been demonstrated. The September 1984 RO denial was supported by the evidence then of record. 38 U.S.C.A. § 1110, 5107; 38 C.F.R. §§ 3.105, 3.303, 3.304 (1993). Since the 1984 determination, the veteran petitioned to reopen a claim for service connection for an eye disorder. In support of the petition, the veteran submitted evidence to the effect that he has retinopathy and that there is edema of the optic nerve. The regional office determined that the veteran had not presented new and material evidence, and in part, the decision of the regional office was justified based upon some decisions of the United States Court of Veterans Appeals. Smith v. Derwinski, 1 Vet.App. 178, 180 (1991). However, other decisions of the Court have reflected that there may be a new claim, if there is a change in the law or a different disability or (by implication) different laws and regulations have to be considered. New or recently developed facts or changes in the law subsequent to the original adjudication may provide grounds for reopening a case or for a de novo review. Russell v. Principi, 3 Vet.App. 310, 313 (1992). See Odiorne v. Principi, 3 Vet.App. 456 (1992); Sawyer v. Derwinski, 1 Vet.App. 130, 133 (1991). The prior decision of the rating board did not require an analysis of the laws or regulations governing chronic or presumptive disease because no disease, injury or disability had been identified. The veteran has now submitted evidence of retinopathy and optic nerve edema. Such conditions may be due chronic diseases such as diabetes mellitus or an organic disease of the nervous system. Additional laws and regulations must be considered and we conclude that there is a new claim. ORDER The claim for service connection for retinopathy and optic nerve edema is a new claim. REMAND The veteran has submitted a medical statement form A. J. Gunn M.D., to the effect that the veteran has had tinnitus for 50 years. However, the basis for the statement is not contained in the August 1992 statement. In addition, the regional office must have an opportunity to adjudicated the new claim for service connection for retinopathy or optic nerve edema. Accordingly, the case is remanded for the following: 1. The regional office is to inform the veteran that he has a duty to submit evidence of a well grounded claim for service connection for retinopathy or optic nerve edema. The best evidence would be medical evidence of the claimed conditions during service or within 1 year of separation from service or attributing the conditions to service. 2. The regional office is to adjudicate the new claim for service connection for retinopathy and optic nerve edema. 3. The regional office is to contact A. J. Gunn M.D. The doctor is requested to answer the following: 1. When was the veteran first seen by him professionally? On which date did the veteran first complain of tinnitus? 2. When is the first date that tinnitus is recorded in the doctor's records? 3. When did the doctor start to practice? 4. What is the exact basis for the comment that the veteran has had tinnitus for 50 years on a daily basis (personal knowledge of the doctor or history reported by the veteran)? 4. The veteran is to be instructed that if he has medical evidence of tinnitus in proximity to separation from service, such evidence should be submitted. If, upon completion of the above action, the claim remains denied, the case should be returned to the Board after compliance with all requisite appellate procedures. No action on the veteran's part is required until he receives further notice. The Board reserves the right to declare any issue not well grounded. H. N. SCHWARTZ 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. In regard to the new claim issue, the following applies: 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. In regard to the remaining issues, the following applies: 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) (1994).