BVA9502796 DOCKET NO. 92-14 378 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a disability of the left eye. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for high blood pressure. 3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for acne. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches. 5. Entitlement to service connection for a scar on the chin. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Anderson, Counsel INTRODUCTION The appellant had active service from June 1975 to June 1978. This appeal arises from a December 1990 rating decision of the Buffalo, New York, Regional Office (RO). In that decision, entitlement to service connection for a left eye disability, high blood pressure, acne, headaches, and a scar on the chin was denied. In November 1993, the Board of Veterans' Appeals (Board) remanded the case to the RO for additional development of the headaches issue. CONTENTIONS OF APPELLANT ON APPEAL The appellant argues that his left eye was operated on in service and his left eye vision has deteriorated over the years. He claims that his headaches started shortly after the left eye surgery and have continued through the years. He also claims that he was initially treated for high blood pressure during service and has been told each year since 1985 by his employer's medical staff that he has high blood pressure. The appellant argues that he was treated for acne in service and has had the condition continuously since then. The appellant also asserts his belief that a cyst on the right side of his chin, which has been removed by surgery, was part of his acne problem. 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 appellant's claims file. 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 to reopen the claims for service connection for a disability of the left eye, high blood pressure, and acne has not been received. It is also the decision of the Board that new and material evidence to reopen the claim for service connection for headaches has been presented. It is the decision of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for a scar on the chin. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. Service connection for an eye condition was denied by a rating decision in July 1980, with notice sent to the appellant. 3. The appellant requested that the claim be reopened in December 1987. 4. By rating decision dated in October 1988, with notice to the appellant, service connection was denied for claimed blood pressure disability, acne, and headaches. 5. The Board denied service connection for an eye disability in March 1989. 6. In July 1990, the appellant requested that his claims to establish service connection for a left eye condition, high blood pressure, and acne be reopened; he also presented a claim for service connection for a scar on his chin. 7. A statement in support of claim from the appellant, dated in January 1991, was interpreted by the RO as a request to reopen his claim for service connection for headaches. 8. Only as it relates to claimed headaches, additional evidence received since October 1988 presents a reasonable possibility that it could change the outcome when considered in the context of all of the evidence. 9. The service medical records show neither complaints, clinical findings, diagnosis, nor treatment of a scar on the chin. 10. During Department of Veterans Affairs (VA) hospitalization in November 1985, the appellant underwent surgical excision of an inclusion cyst on the right face at the right "K" [corner] of his mouth. CONCLUSIONS OF LAW 1. Evidence received since the rating decision of October 1988 and the Board decision of March 1989 is not material as it relates to claimed service connection for a disability of the left eye, high blood pressure, and acne, and the appellant's claims are not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. The appellant's claim for service connection for headaches is reopened. 38 U.S.C.A. § 5108. 3. A postoperative scar on the appellant's chin was not incurred or aggravated in his peacetime service. 38 U.S.C.A. § 1131 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's original claim to establish service connection for an eye disability was denied by a rating decision dated in July 1980. It was determined that a postoperative pterygium in service was acute and transitory with no residuals shown, and refractive error was also denied. In December 1987, the appellant requested that the claim to establish service connection for an eye disability be reopened. In a rating decision dated in October 1988, the RO denied service connection for hearing loss in the left ear, claimed ringing in the ears, claimed blood pressure disorder, acne, and headaches. In a decision dated in March 1989, the Board denied the appellant's appeal of the denial of service connection for an eye disorder. Since these claims have been denied previously, the Board must consider whether new and material evidence has been presented to reopen the claims. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. "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 thoroughly decide the merits of the claim. 38 C.F.R. § 3.156(a). Evidence of record as of the time of the prior denial determinations included the service medical records, reports of private eye evaluations in February 1985 and March 1987, VA progress notes dated from September 1985 to November 1986, and a VA report of medical examination for disability evaluation in August 1988. Evidence added to the record includes some duplicate copies of VA outpatient clinical records, VA outpatient progress notes dated from May 1989 to August 1990, some duplicate copies of service medical records, chronological records of medical care by the service department dated in the years from 1985 to 1991, and a transcript of a hearing conducted at the RO in November 1991. The additional evidence, however, is not material; when viewed in the context of all of the evidence, it does not present a reasonable possibility that it would change the outcome by providing a basis for service connecting a disability of the left eye, high blood pressure, or acne. The evidence still shows that a pterygium of the appellant's left eye was excised during service and that there has been no recurrence. The evidence still shows that the appellant's bilateral visual acuity problem is a refractive error which is correctable with lens. The additional evidence establishes that the appellant's blood pressure readings, previously within normal limits, first manifested elevated readings in 1991. Acne is not currently documented. Moreover, there has not been an expression of medical opinion from any source in support of the request to reopen these claims. Consequently, the October 1988 rating decision and March 1989 Board decision remain final determinations, and they are not reopened. The Board reaches a different conclusion with respect to the request to reopen the previously denied claim of service connection for headaches. The additional evidence in this regard includes a report of disability examination by VA in December 1993, together with an addendum by the examiner dated in February 1994. Therein, the examiner expressed the opinion that the appellant's headaches, by description, "fix into migraine." The Board observes that the October 1988 rating decision which had denied service connection for headaches was based upon a determination that a history of migraine headaches was not considered service incurred or aggravated absent continuity of evidence. The appellant has effectively presented such evidence pursuant to his request to reopen the claim. Accordingly, the claim is reopened. 38 U.S.C.A. § 5108. The appellant claims entitlement to service connection for a scar on his chin. The Board observes that the appellant, in order to be successful, would have to show that a scar on his chin resulted from personal injury suffered or disease contracted in his peacetime line of duty. 38 U.S.C.A. § 1131. However, he claims that the scar is associated with acne, but, as indicated above, service connection is not established for acne. The record shows that the appellant underwent an excision of an inclusion cyst from the right "K" [which, together with an accompanying sketch in the record, the Board interprets as "corner"] of his mouth during VA hospitalization in November 1985. The postoperative scar apparently is the one the appellant refers to as the scar on his chin. The evidence of record establishes, in the judgment of the Board, that this postoperative scar did not result from personal injury suffered or disease contracted in line of duty. There is no expression of medical opinion to the contrary. Service connection remains denied. ORDER Service connection for a disability of the left eye is denied. Service connection for high blood pressure is denied. Service connection for acne is denied. Service connection for a scar on the chin is denied. The claim to establish service connection for headaches is reopened. REMAND Since the claim to establish service connection for headaches has been reopened, VA must review the former disposition of the claim. 38 U.S.C.A. § 5108. Accordingly, this issue is REMANDED to the RO for this purpose. If the benefit of service connection for headaches is not granted to the appellant's satisfaction, a supplemental statement of the case should be prepared. The appellant and his representative should be given the applicable opportunity to reply. Thereafter, the claim should be returned to the Board for further review, if otherwise in order. No action is required of the appellant unless he receives further notice. The Board does not indicate any factual or legal conclusions as to any final outcome warranted in this appeal. LAWRENCE M. SULLIVAN 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. 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. The remand of the issue of entitlement to service connection for headaches 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).