Citation Nr: 0005472 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-13 806A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a left eye disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The RO denied service connection for an eye disorder in a July 1971 rating decision. The RO notified the veteran of that decision, but he did not appeal. 2. Evidence submitted since the July 1971 rating decision is new and so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran was noted to have strabismus at entrance into service, which was surgically corrected during service. The separation examination report showed no strabismus or other ocular abnormality. 4. The veteran's current left eye disorder is not related to any left eye problems shown in service. CONCLUSIONS OF LAW 1. The July 1971 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). 2. New and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a left eye disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. There was no in-service incurrence or aggravation of a left eye disorder. 38 U.S.C.A. §§ 1110, 1111, 1113, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen The veteran originally sought service connection for an eye disorder in January 1971. In a July 1971 rating decision, the RO denied his claim. Although the RO notified the veteran of the denial, the veteran did not appeal. Therefore, the RO's decision of July 1971 is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1999). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. Thus, the Board must perform a three- step analysis when a veteran seeks to reopen a claim based on new evidence. Winters v. West, 12 Vet. App. 203, 206 (1999). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (overruling the test set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991), which stated that "new" evidence was "material" if it raised a reasonable possibility that, when viewed in the context of all the evidence, the outcome of the claim would change); Elkins v. West, 12 Vet. App. 209, 218 (1999) (stating that, after Hodge, new and material evidence may be presented to reopen a claim, even though the claim is ultimately not well grounded). First, the Board must first determine whether the evidence is new and material. Winters, 12 Vet. App. at 206. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). This definition "emphasizes the importance of the complete record for evaluation of the veteran's claim." Hodge, 155 F.3d at 1363. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Second, if the Board determines that new and material evidence has been produced, immediately upon reopening the case, the Board must determine whether, based on all the evidence of record, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Winters, 12 Vet. App. at 206. Finally, if the claim is well grounded, the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. Id. In the July 1971 rating decision, the RO found that the veteran's eye disorder, which existed prior to service, was a constitutional or developmental abnormality. The decision was based on service medical records and VA outpatient records. Evidence received since the July 1971 rating decision included private medical records and statements, the veteran's September 1998 testimony, and the report of the July 1999 VA examination with August 1999 addendum. Considering this evidence, the Board finds, as did the RO, that there is new and material evidence to reopen the veteran's claim. Specifically, all the evidence submitted since July 1971 is new. Most important, a September 1998 private medical statement indicates that the veteran's left eye problems resulted from trauma in service. This statement is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Accordingly, the Board finds that the claim is reopened. 38 U.S.C.A. § 5108; Winters, 12 Vet. App. at 206. Service Connection for a Left Eye Disorder As discussed above, the veteran's claim for service connection for a left eye disorder is reopened. 38 U.S.C.A. § 5108. Initially, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Finally, the Board notes that the veteran has had ample opportunity to submit evidence and argument on the issue and will therefore not be prejudiced by the Board's consideration of his claim at this time. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Factual Background A review of the veteran's service medical records reveals the report of the October 1968 pre-induction examination, which included a finding of strabismus. Progress notes showed that the veteran presented in July 1969. He had watched an arc welder all day yesterday, and now had severe conjunctivitis bilaterally. He was ordered to quarters with eye patches and medication. When he returned the next day for follow up, the eyes were normal. Notes dated in March 1970 indicated that, since childhood, the veteran's left eye had a tendency to drift out. There was no history of surgery, use of special glasses, or childhood or birth trauma. The impression was V syndrome. It was noted that the veteran could benefit from surgery. In April 1970, the veteran was admitted for surgical correction of bilateral exotropia. He underwent bilateral lateral rectus recession with good results and no diplopia. The report of the November 1970 separation examination was negative for strabismus or other ocular abnormalities. On accompanying report of medical history, the veteran denied any history of eye trouble. VA outpatient records dated in January 1971 indicated that the veteran was employed as a welder. He entered service with "lazy eye" and a history of strabismus, which was operated on in service with good results. The veteran now complained of burning and tearing. He wore protective goggles at work. Examination suggested previous bilateral rectus surgery. There was no evidence of conjunctivitis, hyperemia, light sensitivity, or corneal disease. The conjunctival tissues showed minimal surgical scars and were not responsible for his symptoms. The physician prescribed Visine drops. In October 1997, the veteran submitted a statement in support of his claim for service connection for a left eye disorder. He indicated that he was poked in the left eye in Vietnam and had experienced problems since that time. He had surgery in April 1970. The veteran related that, a few years after his separation from service, his eyes bothered him. Doctors told him to use artificial tears. Now, the drops were not sufficient. His eyes were red, sensitive to light, painful, and easily infected. He had developed ulcers with subsequent scarring. The veteran explained that the physician he had seen from 1972 to 1977 was long retired or deceased. In a February 1998 statement, the veteran further explained that he was poked in both eyes in service while playing football. The eyes remained bloodshot for more than three weeks. He underwent surgery, which, he was told, would straighten them both out. Since that time, the veteran had several problems, including dry eyes, a lack of tear ducts, regular infections, redness, blurred vision, and sensitivity to light and dust. He continued to be under the care of a specialist. In connection with his claim, the RO obtained the veteran's medical records from Family Health Plan. Notes dated in April 1990 showed that the veteran complained of eye redness in the morning that worsened during the day and a sandy and itchy feeling. He related that he had eye surgery when he was 19. The impression was marginal dry eye. The doctor prescribed artificial tears. Subsequent records showed continued intermittent complaints of dry eye symptoms. In August 1994, the veteran presented with a bloodshot left eye of several days duration. He complained of pain, redness, watering, photophobia, sensation of foreign body, painful movement, and blurred vision. Examination of the left eye revealed a trace of corneal edema, faint corneal erosion, and conjunctival injection. The assessment was mild corneal abrasion of the left eye and secondary mild conjunctivitis and uveitis/iritis. The physician prescribed medication. The symptoms were resolved on follow up. The veteran returned in July 1997. He had a history of chronic dry eyes. He had not been using his artificial tears and felt that his eye was irritated, so he went to urgent care. He was told that Fluorescin staining showed some corneal abrasions. The veteran returned when the symptoms did not improve with drops. Examination revealed extreme photophobia and inflamed conjunctiva. The assessment was red eye with history of recurrent corneal abrasions. The doctor referred the veteran to an ophthalmologist. An October 1997 statement from Richard D. Davenport, M.D., showed that the veteran was referred to him in July 1997 for further evaluation of a painful and red left eye that had started about one week before. Dr. Davenport noted that veteran's history of sore and dry eyes. Examination of the left eye showed corneal erosion with edema and infiltrate around the lower edge of the erosion. Dr. Davenport stated that treatment resulted in some temporary improvement. He referred the veteran to another physician for additional evaluation. Records dated in July 1997 from John DeCarlo, M.D., reflected that the veteran was referred to him by Dr. Davenport. Dr. DeCarlo's impression from examination was corneal ulcer in the left eye and history of recurrent erosion. He felt that the corneal ulcer followed the recurrent erosion. Notes dated in August 1997, following treatment, indicated that the remaining problem consisted of simple residual scarring in the area of the previous corneal ulcer that did not affect his vision. Subsequent records through October 1997 showed intermittent flare-ups of left eye problems. The RO requested records from PrimeCare and Blue Cross Blue Shield. PrimeCare indicated that it did not have any records and that the providing physician should be contacted directly. Blue Cross Blue Shield did not reply to the RO's request. In November 1997, the RO advised the veteran of these developments and requested that he provide the associated records. The RO did not receive a response from the veteran. The veteran testified at a personal hearing in September 1998. He did not have any eye problems when he went into service. He was stationed with a medical unit. The veteran explained that he was playing basketball, instead of football, when was poked in the left eye. One of the doctors gave him cream for the eye. In April 1970, an eye surgeon looked at his eyes, saw they were red, and sent him for surgery. They cut some tissue from both sides of the eyes. Right after he got out of service, the veteran had a burning sensation in the eyes. In January 1971, he went to a VA medical center for eye problems, which were treated. He went to his family physician for continued eye problems. The veteran related that the doctor had been deceased for many years. The veteran was treated for eye problems in 1997. The doctors told him that he had very sensitive eyes and old scarring. The veteran felt that he never had any eye problems before service. He had never had glasses until he got reading glasses about five years before. After he was poked in the eye, he had blurred vision, which was cleared up with the drops or cream he was given. He testified that a physician told him that his current left eye disorder was caused by the trauma of being poked in the eye. The RO received a statement from Dr. Davenport dated in September 1998. Dr. Davenport explained that the veteran related to him that he was poked in the left eye in service in 1969 and had the eye patched at that time. He later had strabismus surgery. Beginning in 1971, he had recurrent episodes of scratching and pain in the left eye. He saw the veteran in July 1997 for a painful left eye with recurrent erosion that had become infected. At that time, the veteran related that he had a history of that problem and had been using artificial tears to prevent it. The episodes usually lasted two to three days, though the episode in 1997 was extended. The veteran had had some recurrence of problems in the left eye with associated iritis, which was probably secondary to the irritation caused by the erosion. There was a scar below the left pupil due to the infection in the area of the erosion suffered in 1997. The veteran gave a history of corneal abrasion in 1969 in service with onset of recurrent irritation in 1971, which was compatible with a recurrent erosion history caused by the original trauma. When Dr. Davenport saw him, the findings were compatible with this diagnosis and at this time he had a definite scar. In February 1999, the RO wrote the veteran and asked him to supply private medical records for his eye disorder for dates from 1971 to 1990. The RO received no response to this request. Work product in the claims folder received in May 1999 indicated that there were no additional medical records for the veteran during his claimed period of service in the Reserves. The veteran was afforded a VA ophthalmology examination in July 1999. He related that he had an unknown eye operation in service. He was uncertain of the indication for the surgery. There was no other significant medical history. Subjective complaints included occasional redness and what the veteran claimed was infection in both eyes for the past one and one-half years. Medications included Inflamase in both eyes. Examination of the eyes was essentially normal. The diagnosis was presbyopia and dry eye syndrome. The examiner commented that there was no manifestation of strabismus found on examination. In addition, he doubted that conjunctivitis was due to arc welding. In an August 1999 addendum to the examination report, the examiner specified that he had reviewed the veteran's records. He opined that the veteran's dry eye syndrome was not related to service. There was no evidence of strabismus or conjunctivitis at the time of the examination, and he did not see recurrent erosion, iritis, or corneal abrasion. The strabismus that pre-existed service has been corrected without progression at this time. Finally, the examiner stated that conjunctivitis would not manifest from arc welding after such an extended period. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495. 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." 38 C.F.R. § 3.303(b). If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. at 496-97. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Id. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease is considered aggravated by military service where there is an increase in disability during service, absent a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation may be rebutted only by clear and unmistakable evidence. 38 C.F.R. § 3.306(b). In this case, the Board finds that the preponderance of the evidence is against service connection for a left eye disorder. First, the Board notes that the strabismus shown at entrance to service was corrected by surgery in service without evidence of worsening or related problems. Thus, there is no basis for service connection for a left eye disorder based on aggravation of a pre-existing disorder. 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.303, 3.304. Second, the Board finds that the only other eye problem shown in service, conjunctivitis from watching arc welding, was acute and transitory without chronic residuals shown in service. Moreover, there is no post-service medical evidence of record to suggest that any chronic left eye disorder ultimately resulted from this single episode of conjunctivitis. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Finally, the veteran specifically alleges that his left eye was poked in service, which led to his recurrent left eye problems. The Board acknowledges that the veteran secured an opinion from Dr. Davenport that the veteran's recurrent left eye problems stem from an in-service trauma to the eye. However, it is clear from Dr. Davenport's statement that his opinion is based solely on the history as reported by the veteran. A medical opinion that relies on history as related by the veteran is no more probative than the facts alleged by the veteran. Swann v. Brown, 5 Vet. App. 229, 233 (1993). In this case, the facts alleged by the veteran are not supported by the other evidence of record. Despite the veteran's statements and testimony to the contrary, the service medical records fail to reveal any record of treatment for a poked left eye during a basketball game or any other left eye trauma. There is no indication that the service medical records in the claims folder are in any way incomplete. Therefore, the Board is unable to accord significant weight to Dr. Davenport's opinion, which, the Board finds, lacks probative value. In summary, the Board finds that the preponderance of the evidence is against entitlement to service connection for a left eye disorder. 38 U.S.C.A. §§ 1110, 1111, 1113, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Entitlement to service connection for a left eye disorder is denied JAMES A. FROST Acting Member, Board of Veterans' Appeals