Citation Nr: 0007687 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-03 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for right eye macular degeneration as secondary to service- connected residuals of a right eye disability. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from June 1942 to December 1945. He has been service connected for residuals of a right eye injury since May 1952. In January 1994, the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral macular degeneration. The RO notified the veteran of that decision by letter dated January 27, 1994; he did not appeal. 38 C.F.R. §§ 20.200, 20.201, 20.302(a) (1999). In December 1996, the veteran filed an application to reopen the claim. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1997 decision from the VARO to not reopen the claim. FINDINGS OF FACT 1. The RO denied service connection for bilateral macular degeneration in January 1994 and notified the veteran of that decision by letter dated January 27, 1994; he did not appeal. 2. Evidence received since the January 1994 rating decision includes medical evidence, which shows the veteran has a current disability of right eye macular degeneration. 3. The medical evidence does not show a diagnosis of or treatment for right eye macular degeneration in service or within one year after separation from service. 4. The evidence includes three medical opinions that aging caused the veteran's current right eye macular degeneration. 5. Evidence received since the January 1994 rating decision includes medical evidence, which shows the veteran has a current left eye disability. 6. The medical evidence does not include a diagnosis of or treatment for a left eye injury or disease in service or within one year after separation from service. 7. The medical evidence does not include a nexus opinion linking a current left eye disability to active service. CONCLUSIONS OF LAW 1. The evidence received since the January 1994 rating decision is new and material evidence; the claim for service connection for right eye macular degeneration is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). 2. The claim of entitlement to service connection for right eye macular degeneration is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. Macular degeneration of the right eye was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1132 (West 1991); 38 C.F.R. §§ 3.303, 3.304(b) (1999). 4. The evidence received since the January 1994 rating decision is new and material evidence; the claim for service connection for a left eye disability is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1999). 5. The claim of entitlement to service connection for a left eye disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The state of the evidence prior to the January 1994 rating decision follows. The June 1942 enlistment examination report showed that the veteran had 20/20 vision in both eyes, and no eye defects were noted. In March 1943, the veteran suffered injury to the right eye, initially diagnosed as a contusion of the right eye. Ophthalmoscopic examination revealed nothing of note. After treatment with ophthalmic ointment and an eye bandage, the veteran presented no residual involvement. However, examination 5 days later revealed vision of 11/20 in the right eye and 20/20 in the left eye. No hemorrhage was seen in the retina. Examination in April 1943 revealed no evidence of retinal or muscular damage, and the fundus appeared normal. In October 1943, no pathology was found in either fundus, and no detachment was seen. The examiner opined that the right vitreous was hazy probably due to the earlier contusion and that the condition would clear up. The March 1944 examiner stated that the pain and visual disturbance in the right eye had not abated in any degree. The pain was felt in the posterior portion of the orbit and was not related to use of the eye. Visual disturbance was troublesome though minor compared to the constant recurring pain. In April 1944, cycloplegic retinoscopy revealed that vision was 10/20 in the right eye and 20/20 in the left eye, and the fundi of both eyes were normal except for possibly slight pigmentary cleavage in the right macula. The examiner opined that he saw no other explanation for the diminished visual acuity and pain of which the veteran complained. In May 1944, red free illumination of the fundus of the right eye revealed a small ring of pigment accumulation in the macula and a minute hole in the macula. Otherwise, the fundus of the right eye was normal. The left eye was normal. The examiner opined that vision of the right eye was not capable of correction to normal because of injury to the macula. The veteran was issued his first pair of prescription eyeglasses. In December 1944, the pain in the right eye persisted as before. The examiner opined that the pain was almost certainly not functional in origin and that there had been no change in the retinal picture since May 1944. The December 1945 separation examination report stated that the veteran had 20/20 vision in both eyes, and no eye defects were noted. In August 1952, a VA consulting physician stated that he saw the veteran 3 times in May 1952 with reference to the right eye. Ophthalmoscopic examination was essentially normal of both eyes. All other findings were within normal limits. The only significant finding was that the right eye did not see as well as the left, corrected or uncorrected. Although unable to demonstrate macular damage of the right eye, the examiner opined that the veteran's history and the examination findings pointed to such a possibility. The diagnosis was defective vision of the right eye. In April 1953, the RO received a lay statement from the veteran's employer. The employer stated that the veteran had severe headaches that frequently forced him to stop work. He had even been hospitalized since starting work as a ranch foreman several months earlier. The employer opined that the veteran's disability prevented him from continuing this occupation. In August 1953, a consulting physician stated that he reexamined the veteran in November 1952. At that time, it was impossible to correct the vision in the right eye above 20/30, representing a loss from 20/25 in May 1952. Ophthalmoscopic examination revealed that the left eye was essentially normal, and the right eye was essentially normal with the exception of a minute hole in the macula around which there was slight pigmentation. After exhaustive examination of the macula of the right eye with the binocular ophthalmoscope and red free illumination, the examiner opined that pathology was significant and would become more so as time passed. The veteran underwent a VA examination in October 1953. Eye pathology was not found, and fields were within normal limits. The veteran reported that his eyes, but mostly the right, became painful and red during frequent headaches. The veteran underwent a VA examination in December 1993. The anterior segment examination revealed a slight amount of pigment on the corneal endothelium in both eyes, superficial punctate keratopathy in both eyes, small foreign body scars in both eyes in the cornea, and peripheral transillumination defects of the iris in both eyes. The macula showed pigment epithelial detachments in both eyes with a very small hemorrhage superior in the right eye and a small operculated retinal tear in the left eye periphery at 4 o'clock. The diagnosis was operculated retinal tear of the left eye and age-related macular degeneration in both eyes. The state of the evidence since the January 1994 rating decision follows. In November 1996, a private ophthalmologist stated a diagnosis of bilateral age-related macular degeneration with count fingers vision in the right eye and 20/200 with a pinhole to 20/70 vision in the left. The private examiner stated that a review of the veteran's military medical history revealed a 1945 injury to the right eye that caused loss of central vision at that time. In the November 1996 statement and letters in 1997 to various legislators, the veteran alleged that the VA told him that his military records were destroyed in a 1973 fire at the Personnel Records Center in St. Louis, Missouri. The veteran underwent a VA examination in August 1997. The veteran reported pain around and decreased vision in his right eye since undergoing trauma in World War II. The examiner noted that the November 1996 private ophthalmologist records were not available for review. The diagnosis was maculopathy of both eyes of unknown etiology but a history of old trauma, nuclear sclerosis cataracts of both eyes, and refractive error. The veteran and his wife, assisted by the veteran's representative, provided testimony to the RO at a hearing in June 1998. The veteran's two sisters, R.E. and F.R., were present but did not testify. The veteran testified that he first noticed vision problems in his right eye at the time of the injury in service. Transcript (June 1998), page 2. In 1952-1953, he could see a little light but it was just a dark blur. The blurring continued to worsen. Transcript (June 1998), page 3. The veteran testified that he was not treated at the VA hospital for these problems because the VA told him that he was not service connected. He first received the purple card informing him that he was service connected in 1996. Transcript (June 1998), pages 1 and 4. The veteran's wife testified that she was present when an eye doctor told the veteran that his right eye was different from his left, sometime in the 1970's. Transcript (June 1998), pages 4-5. The veteran also provided lay statements from friends and relatives at the June 1998 hearing. J.J. had known the veteran since 1970. As they worked, hunted, and fished together, J.J. observed that the veteran experienced partial blindness and blurriness in the right eye. Reverend C.F. had known the veteran for more than 7 years. At their first meeting, the veteran requested prayers for failing eyesight but the problem had persisted since then. The veteran underwent a VA examination in September 1998. The examiner stated that he reviewed the veteran's claims file. With respect to subjective complaints, the veteran reported an ocular history of a latch injury to the right eye and head and a contusion to the right eye suffered in a fistfight in 1943. The veteran's ocular history was also remarkable for macular degeneration and early cataracts. With respect to objective findings, the August 1998 examination revealed a best correct visual acuity of light perception of the right eye and 20/50 pinhole with no improvement of the left eye. A full thickness macular hole was noted in the right eye with a partial thickness (or lamellar) hole noted in the left eye. A posterior vitreous detachment was noted in the left eye. The peripheral retina was intact, and lenses exhibited 2+ nuclear sclerotic cataracts. The diagnoses were a full thickness macular hole of the right eye, partial thickness lamellar macular hole of the left eye, dry age-related macular degeneration of both eyes, peripheral vision loss of the right eye of unknown etiology, complaints of right eye pain first noted in 1944 and possibly related to trauma, and mild nuclear sclerotic cataracts of both eyes. The November 1999 representative's statement alleged that injury in World War II compromised the visual acuity of the right eye. The veteran's February 2000 letter stated that he was in perfect health prior to service and that he had headaches and loss of vision in his eye since the in-service eye injury. He felt that his appeal had been delayed because he was originally told that his service medical records were burned in a fire. He was disappointed that the service medical records had been available all along but were not produced until after he made numerous and persistent inquiries. Without the service medical records to pursue his claim earlier, he had to treat his eye problems with over- the-counter remedies and, thus, did not have medical records to document his eye problems since the case was last before the RO. In a February 2000 independent medical opinion, a private ophthalmologist opined that the record of pigment disturbance in the macular of the right eye in December 1994 was the residual disability of the right eye as a result of the in- service injury. The ophthalmologist opined that it was almost impossible to identify the previous in-service injury due to the super-imposed macular change resulting from age- related macular degeneration. The ophthalmologist opined that there was not an etiological relationship between the injury to the right eye in service and the current macular degeneration of the left eye. Criteria An appeal consists of a timely filed notice of disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. Despite the finality of a prior final RO decision, 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). Under Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the determinations of whether evidence is new and whether it is material are governed by the tests set forth in 38 C.F.R. § 3.156(a), "new" evidence "means evidence not previously submitted to agency decision makers . . . which is neither cumulative nor redundant"; "material" evidence is new evidence "which bears directly and substantially upon the specific matter under consideration" 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 U.S.C.A. § 5108; Fossie v. West 12 Vet. App. 1 (1998); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.156(a). A two-step analysis is conducted under 38 U.S.C.A. § 5108. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In Elkins v. West, 2 Vet. App. 422 (1999) (en banc), Court held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a), i.e., the new evidence bears directly and substantially on the specific matter, and is so significant that it must be considered to fairly decide the merits of the claim; second, if new and material evidence has been presented, immediately upon reopening the Board must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Board may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. See Elkins v. West, 2 Vet. App. 422 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc); Justus v. Principi, 3 Vet. App. 510 (1992). When determining whether the claim should be reopened, the credibility of evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). A veteran is presumed to be in sound condition when accepted for service, with the exception of disorders noted at the time of entrance into service unless clear and unmistakable (obvious and manifest) evidence demonstrates that the injury existed prior to service. 38 U.S.C.A. §§ 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). To show 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, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required where the condition noted during service or in the presumptive period is not 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. § 3.303(b). In Savage v. Gober, 10 Vet. App. 488 (1997), the Court established the following rules with regard to claims addressing the issue of chronicity: The chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Therefore, notwithstanding the veteran's showing of an in-service injury, and statements of post-service continuity of symptomatology, medical expertise is required to relate his disabilities etiologically to his post-service symptoms. Savage, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3rd 604 (Fed. Cir. 1996) (per curiam). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (1999). When there is aggravation of a nonservice-connected condition which is proximately due to or the result of service-connected disease or injury, the claimant will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a veteran claims a new disease or disability that is the result of his service-connected disability, competent evidence must be submitted to make the claim well grounded. See Jones (Wayne) v. Brown, 7 Vet. App. 134 (1994). Analysis Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for right eye macular degeneration as secondary to service-connected residuals of a right eye injury The veteran has presented new evidence that was not in the record at the time of January 1994 rating decision: 1) sworn testimony from the June 1998 hearing; 2) additional medical records, and 3) additional lay statements. This evidence is new and material because the record previously contained no hearing testimony and no medical records or lay statements since January 1994 to help explain the nature and duration of the veteran's current disability. Therefore, the claim must be reopened because new and material evidence that confirms the presence of right eye macular degeneration, in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. The new and material evidence, in conjunction with the previous evidence, established a well-grounded claim. The veteran has a current right eye macular disability because the November 1996, August 1997, and September 1998 examiners stated a diagnosis of macular degeneration or maculopathy of the right eye. The veteran was also examined and treated for a macular disorder of the right eye in service. Service medical records showed a possibly slight pigmentary cleavage in the right macular in April 1944 and a small ring of pigment accumulation in the macula and a minute hole in the macula in May 1944. The veteran also satisfied the Caluza nexus requirement. For the limited purpose of well grounding the claim, the Board notes that the April 1944 in-service examiner opined that he saw no other explanation for the veteran's diminished visual acuity and pain except for the slight pigmentary cleavage in the right macular. The record also showed continuing symptomatology since service because the examinations of 1952, 1953, 1993, 1996, 1997, and 1998 showed defective vision of the right eye possibly due to macular damage. Testimony and lay statements from the veteran and his associates asserted continuity of a right eye problem since service. Therefore, the claim for service connection for right eye macular degeneration is well grounded. If the claim is well grounded, the case will be decided on the merits, but only after the Board has determined that the VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. The RO obtained medical records from the identified examiners, and the veteran provided sworn testimony at a hearing and filed numerous lay statements with the RO. The veteran received 2 VA examinations, and the VA assisted the veteran in obtaining an independent medical opinion. The veteran had over 50 years since service to provide evidence in response to the RO's written requests for information and medical evidence. Therefore, the VA has fulfilled the duty to assist under 38 U.S.C.A. § 5107(a). A preponderance of the evidence shows that right eye macular degeneration was not incurred in or aggravated by active service or caused by residuals of the in-service right eye injury. The medical evidence does not include a diagnosis of or treatment for right eye macular degeneration in service or within one year after separation from service. Instead, the veteran had 20/20 vision in his right eye when he separated from service in December 1945. Over 6 years later, the August 1952 examiner was unable to demonstrate macular damage of the right eye, and ophthalmoscopic examination was essentially normal of the right eye. Although the veteran claimed continuous treatment for his right eye injury, the first post-service right eye disorder was diagnosed in October 1953, over 7 years after service. The December 1993 and September 1998 examiners attributed the macular degeneration of the right eye to aging. In February 2000, an independent ophthalmologist opined that it was almost impossible to identify the previous in-service injury due to the superimposed macular change resulting from age- related macular degeneration. Thus, the independent ophthalmologist also attributed the veteran's right eye macular degeneration to aging. Although the independent ophthalmologist acknowledged the veteran's current pigment disturbance, he stated that the pigment disturbance was a residual of the right eye injury in service. Service connection is already in effect for residuals of a right eye injury. The September 1998 and February 2000 medical opinions were especially probative because the 2 doctors separately reviewed the veteran's claims file, including 42 years of medical records, and reached the same conclusion. The doctrine of aggravation does not apply because the veteran was presumed sound at entry into service and there is no clear and unmistakable evidence that a right eye macular disorder preexisted service. Therefore, the preponderance of the evidence shows that right eye macular degeneration was not incurred in active service. Finally, the Board notes that the veteran and his associates alleged that right eye macular degeneration was incurred in service because the veteran currently experiences right eye problems. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Therefore, although competent to observe the veteran's behavior during headaches or to count the days the veteran missed from work, the veteran and his associates are not competent to diagnose right eye macular degeneration as the cause of the veteran's symptoms. Accordingly, right eye macular degeneration was not incurred in or aggravated by active service or by service connected residuals of a right eye injury. Although the Board decided the veteran's claim on grounds different from that of the RO, which denied reopening the claim, the veteran has not been prejudiced by the decision. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a left eye disability The veteran has presented new evidence that was not in the record at the time of January 1994 rating decision: 1) sworn testimony from the June 1998 hearing; 2) additional medical records, and 3) additional lay statements. This evidence is new and material because the record previously contained no hearing testimony and no medical records or lay statements since January 1994 to help explain the nature and duration of the veteran's current disability. Therefore, the claim must be reopened because new and material evidence that confirms the presence of a left eye disability, in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. The medical evidence includes a current diagnosis of a left eye disability because the December 1993, November 1996, and September 1998 examiners diagnosed macular degeneration of the left eye, the December 1993 examiner diagnosed a small operculated retinal tear in the left eye, the August 1997 examiner diagnosed a cataract of the left eye, and the September 1998 examiner diagnosed a partial thickness lamellar macular hole of the left eye. The claim is not well grounded because the medical evidence does not include a diagnosis of or treatment for a left eye injury or disease in service or within one year after separation from service. Rather, the left eye was normal in March 1944 in service, and the left eye vision was 20/20, with no eye defects noted, at the veteran's separation from service. The left eye was essentially normal in May 1952 and without pathology in October 1953, over 6-7 years after separation from service. The claim is also not well grounded because the medical evidence does not include a nexus opinion linking a current left eye disability to active service. The February 2000 independent ophthalmologist also stated that the current macular degeneration of the left eye was not etiologically related to the injury to the right eye in service. Accordingly, the claim of entitlement to service connection for a left eye disability is not well grounded. The VA cannot assist in any further development of the claim because it is not well grounded. 38 U.S.C.A. § 5107(a); Morton v. West, 13 Vet. App. 205 (1999). Although the Board decided the veteran's claim on grounds different from that of the RO, which denied reopening the claim, the veteran has not been prejudiced by the decision. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER New and material evidence having been submitted, the claim for service connection for right eye macular degeneration is reopened, and entitlement to service connection is denied. New and material evidence having been submitted, the claim for service connection for a left eye disability is reopened, and entitlement to service connection is denied. V. L. Jordan Member, Board of Veterans' Appeals