BVA9501243 DOCKET NO. 93-02 731 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for retinitis pigmentosa. WITNESS AT HEARING ON APPEAL Appellant REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from April 1944 to March 1945. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This case was also developed by the RO on the issue of whether there was clear and unmistakable error in the rating actions of April 1945, February 1950, April 1955, March 1967, and October 1967, all of which denied service connection for retinitis pigmentosa. However, we find that these issues as developed are not a proper subject for appellate consideration. Our review of the record in this case reveals that these rating actions denying service connection for retinitis pigmentosa were affirmed by a final Board decision, dated January 8, 1968, which also denied service connection for retinitis pigmentosa. Under these circumstances, the prior rating decisions in question, denying service connection for retinitis pigmentosa, have been subsumed by the January 1968 final appellate decision of the Board. Pursuant to a recent decision of the United States Court of Appeals for the Federal Circuit, a "clear and unmistakable error" standard of review is applicable only to otherwise final decisions of agencies of original jurisdiction (R0s). Such a review is not applicable to Board decisions that are otherwise final. Smith v. Brown, 35 F.3d 1516 (Fed.Cir. 1994). Since under Smith, a final decision of the Board may not be attacked on the basis of a claim of clear and unmistakable error, the veteran's current claim of clear and unmistakable error in the subsumed rating actions is also not a proper subject for appellate consideration, since the rating actions in question have been subsumed by the Board decision. An attack on these rating decisions represents an attack on the Board decision which subsumed them and would be contrary to the holding in Smith. Thus, the issue of clear and unmistakable error in the subsumed rating actions developed by the RO is not a proper subject for appellate consideration. The proper remedy in such cases is a motion for reconsideration of the final Board decision; however, the record in this case reveals that there has been no such request for reconsideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that the RO committed error by not awarding service connection for retinitis pigmentosa. The veteran feels that he has submitted sufficient evidence to warrant reopening of his claim for service connection for retinitis pigmentosa. He also argues that opinions of the Office of the VA General Counsel since 1968 allowing service connection for familial and hereditary diseases should be sufficient to allow reopening and allowance of his claim. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, 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 service connection for retinitis pigmentosa. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. Entitlement to service connection for retinitis pigmentosa was denied by Board decision in January 1968 on the basis that retinitis pigmentosa had existed prior to service and that the increase in severity noted in service was clearly and unmistakably due to the natural progress of the disease. 3. Evidence submitted since the 1968 Board decision consists primarily of hearing testimony, reiteration of contentions, medical evidence subsequent to January 1968, and materials relating to the adverse effect of sulfa drugs. 4. The evidence submitted since the 1968 Board decision is cumulative in nature. CONCLUSION OF LAW Evidence received since the Board denied entitlement to retinitis pigmentosa in January 1968 is not new and material, and the claim has not been reopened. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds initially that the appellant's claim is "well grounded." That is, it is not inherently implausible. We also find that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the VA to assist the appellant in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). The veteran's claim for service connection for retinitis pigmentosa was last denied by the Board in January 1968. At that time, the Board found that retinitis pigmentosa clearly and unmistakably existed prior to service and that an increase in severity during service was attributable to the natural progress of the disease and not the result of any incident of service. The current appeal arises from the RO's determination that new and material evidence with respect to this issue has not been submitted. Once a claim has been disallowed by the Board, the claim may not, thereafter, be reopened and allowed unless new and material evidence is presented or secured with respect to the disallowed claim. 38 U.S.C.A. § 7104 (West 1991). New and material evidence means evidence not previously submitted to agency decision makers 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) (1993). Accordingly, the primary question for consideration is whether new and material evidence has been submitted which would allow for a reopening of the claim of service connection for retinitis pigmentosa. We note that the only new evidence submitted since the 1968 Board decision consists of the veteran's hearing testimony, his reiteration of his contentions, medical records subsequent to 1968, and copies of materials dealing with the adverse effects of sulfa drugs. While some of this material is "new evidence," in that it was not available at the time of the original decision, it is cumulative in nature. The "new and material" evidence provided by the veteran merely addresses facts that were previously established in the record and considered at the time of the Board's 1968 decision. At that time, the veteran advanced the same arguments he is currently advancing including that his treatment for another condition with sulfa drugs in service adversely affected his retinitis pigmentosa. The veteran has offered no medical opinion or evidence to support this claim. He has furnished literature showing the adverse effects of topical sulfa drugs. However, the veteran's treatment in service is shown to have been with oral sulfa drugs and not topical or ophthalmologic solutions. We further note that the veteran lacks the medical expertise to enter a judgment regarding a possible medical relationship between his claimed eye disorder and any claimed inservice onset or aggravation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The medical records added to the claims folder show the veteran's condition after 1968 and have no probative value with respect to the status of his retinitis pigmentosa during the critical service period. The veteran has introduced no evidence which would establish that his preexisting retinitis pigmentosa underwent aggravation during his period of service. Finally, with respect to the veteran's testimony at the hearing, we note that his contentions have been previously considered and that his statements concerning the medical aspects of the case are not persuasive under Espiritu. The newly submitted evidence, alone or in combination with the evidence previously of record, fails to establish that the veteran's retinitis pigmentosa underwent any increase in severity other than that due to natural progress during his service tenure. The Board finds that the record, in its entirety, fails to demonstrate aggravation of the veteran's preexisting condition as a result of service. Thus, the claim may not be reopened. The veteran has also argued that intervening opinions of the Office of the General Counsel, Department of Veterans Affairs, are, in and of themselves, sufficient to reopen his claim for service connection for retinitis pigmentosa. In this regard, we note that the General Counsel's decisions cited by the veteran refer to diseases considered to be hereditary in origin, but if first diagnosed in service can be a proper subject for a grant of service connection. In the present case, the prior Board decision determined, based on the evidence of record, that the veteran's retinitis pigmentosa had clearly and unmistakably existed prior to service. While recognizing that the veteran's retinitis pigmentosa had increased in severity during service, the decision found that the increase clearly and unmistakably was due to the natural progress of the disease. Unfortunately, given the facts in the case currently before us, the cited opinions of the General Counsel do not apply. In this case, there exists clear and unmistakable evidence that his retinitis pigmentosa preexisted active military service and that the increase in severity demonstrated in service was due to the natural progress of the condition. There was no evidence of any inservice aggravation at the time of the 1968 Board decision, nor has the veteran submitted such evidence since that time. As noted above, we find no basis for reopening the veteran's claim. ORDER New and material evidence not having been submitted, the application to reopen the claim for service connection for retinitis pigmentosa is denied. (CONTINUED ON NEXT PAGE) 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.