Citation Nr: 0005135 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-33 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim for service connection for bilateral foot disability. 2. Whether new and material evidence has been presented to reopen the claim for service connection for impaired vision. 3. Entitlement to service connection for throat disability. 4. Entitlement to service connection for residuals of gum surgery. 5. Entitlement to service connection for leg cramps. 6. Entitlement to service connection for hemorrhoids. 7. Entitlement to service connection for hypertension and heart disability. 8. Entitlement to a compensable evaluation for diverticulosis. 9. Entitlement to a compensable evaluation for hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from September 1950 to February 1971. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a December 1996 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs Regional Office (VARO). FINDINGS OF FACT 1. Service connection for bilateral foot disorder and pes planus was denied by VARO in July 1980 and December 1982, respectively. These decisions are final. Evidence submitted to reopen the claims is essentially cumulative of evidence previously considered and does not tend to show the presence of any foot disability related to service. 2. The appellant seeks service connection for refractive error of the eyes, a congenital or developmental defect. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim to service connection for foot disability has not been presented. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). 2. The appellant lacks entitlement under the law to service connection for visual impairment from refractive error of the eyes. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen VARO denied the appellant's claim for service connection for foot disability in July 1980 and, specifically, for pes planus in December 1982. Also, the Board denied service connection for impaired vision in July 1982. These decisions are final. We note that a final rating determination is not subject to revision upon the same factual basis. 38 U.S.C.A. § 7104 (West 1991), 38 C.F.R. § 20.1100 (1999). Under pertinent law and regulations, as interpreted by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (the Court), the Board may reopen and review a claim which has been previously denied only if new and material evidence is submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999); Manio v. Derwinski, 1 Vet.App. 140 (1991). The credibility of the new evidence is presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Court has held that the provisions of 38 U.S.C.A. § 5108 (West 1991) require a review of all evidence submitted by the claimant since the last final denial of a claim in order to determine whether a claim must be reopened and adjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994); see also Evans v. Brown, 9 Vet.App. 273, 285 (1996). According to 38 C.F.R. § 3.156(a) (1999), "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 the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the case. The well groundedness requirement shall not apply with regard to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet. App. 134 (1994). While this appeal was pending, the United States Court of Appeals for the Federal Circuit rendered its decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Hodge, the Federal Circuit changed the law as it pertains to the submission of new and material evidence and offered guidance as to how the Court should review such determinations made by the Board. First, the Federal Circuit invalidated the test adopted by the Court in Colvin v. Derwinski, i.e., that evidence was new and material sufficiently to reopen a claim if the evidence, when considered with the other evidence, would raise a reasonable possibility of changing the outcome. 1 Vet.App. 171, 174 (1991). The Federal Circuit proceeded to adopt the standard set forth in 38 C.F.R. § 3.156(a) (1997) as the appropriate standard for determining whether new and material evidence had been submitted. Second, as a result of Hodge and the Federal Circuit's recitation that the determination of whether new evidence is sufficiently material is a "fact-specific determination," "a deferential standard of review of these decisions under 38 U.S.C. § 7261(a) becomes the proper one." Fossie v. West, __ Vet.App. __, __, No. 96-1695, slip op. at 5 (October 30, 1998). Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. A. Foot Disability When VARO denied the appellant's claim for service connection for foot disability in July 1980 and for pes planus in December 1982, it considered service medical records, which reflect that the appellant was seen for chronic foot pain complaints assessed as heel strain. Painful heels were noted on separation/reenlistment examination dated June and July 1967. The appellant was deemed qualified for reenlistment. Report of retirement examination dated September 1970 reflects a history of foot trouble, but clinical evaluation was negative for defects of the feet and no disability was noted. VARO also considered reports of VA examinations dated July 1971, October 1979, and October 1982. The July 1971 and October 1982 examinations were positive for pes planus; however, this disorder was not related to service by either of the examining physicians. The October 1979 examination was entirely negative for any foot disability. VARO denied service connection for bilateral foot disability in July 1980 because competent evidence of a current disability had not been submitted. It denied service connection for pes planus in December 1982 because, although a current foot disability was shown, it was not related to service by competent medical evidence of record. Since these decisions, VA treatment records have been associated with the appellant's claims folder along with VA examination reports, which are silent regarding the presence of any foot disability. In support of his claim to reopen, the appellant submitted duplicate medical records along with sworn testimony from a personal hearing conducted in December 1997. At this hearing, both the appellant and his spouse testified that the appellant had terrible foot pain and swelling, akin to the type he had in service. Having reviewed the most recent evidentiary submissions, the Board finds that it is essentially duplicative of evidence previously considered and that it does not tend to show the presence of any current foot disability related to service through competent medical evidence. New evidence is that which is not merely cumulative of other evidence on the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) citing Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990). Material evidence is that which is relevant and probative of the issue at hand. Colvin, supra., citing Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Therefore, we conclude that new and material evidence has not been presented to reopen the claim for foot disability. Accordingly, the Board does not have jurisdiction to consider the previously adjudicated claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet.App. 167, 171 (1996) (When new and material evidence has not been submitted in a previously disallowed claim "[f]urther analysis . . . is neither required, nor permitted."). B. Impaired Vision Evidence considered by the Board in its July 1982 decision included service medical records, which reflects that slight refractive error was found in April 1970. These records were silent for chemical or acid accidentally entering the eyes. The Board also considered reports of VA examinations dated July 1971 and October 1979, which show normal eyes although pterygium of the left eye was noted in October 1979 (not related on examination to service). The Board denied the claim for impaired vision because as a matter of law refractive error of the eyes is deemed a congenital or developmental disorder for which service connection may not be had. Since the Board's July 1982 decision, VA treatment records have been associated with the appellant's claims folder along with VA examination reports. In support of his claim to reopen, the appellant submitted duplicate medical records along with sworn testimony from a personal hearing conducted in December 1997. The sworn testimony reflects that the appellant desires service connection for impaired vision, essentially refractive error, which he believes is related to an in-service accident wherein a chemical substance entered his eyes causing blurred vision. He did not contend the presence of any other disorder of the eyes. In view of the above, the Board finds that the appellant's claim lacks legal merit. Pertinent regulations prohibit service connection for refractive error of the eye because this condition is not considered a disease or injury within the meaning of the applicable legislation. See 38 C.F.R. § 3.303(c) (1999). In those cases where the law and not the evidence is dispositive, the claim should be denied on the basis that there is an absence of legal merit or that the claimant lack entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426 (1994). As such, it is not necessary for the Board to address whether new and material evidence has been submitted to reopen the claim as the appellant simply may not be awarded service connection for refractive error of the eyes even in the presence of new and material evidence to reopen the previously denied claim. Accordingly, the claim for service connection for impaired vision is dismissed. ORDER Having found that new and material evidence has not been presented to reopen the claim for service connection for bilateral foot disability, the benefit sought on appeal remains denied. The claim for service connection for impaired vision due to refractive error of the eyes is dismissed. REMAND A review of the claims folder discloses that additional evidence was received at the Board on December 20, 1999. VARO did not consider this evidence when adjudicating the instant claims and no waiver of review by VARO (the agency of original jurisdiction) was received. The Board has carefully reviewed the recent evidentiary submissions and finds that it is pertinent to the claims for service connection and for increase. This evidence was not pertinent to the claims to reopen and, as such, the Board considered those claim above. We note that a waiver of consideration by VARO is necessary when pertinent evidence is submitted within the 90-day window following certification of the appeal in order for the Board consider the appeal, otherwise the evidence (along with the claims) must be referred to VARO for initial consideration. 38 C.F.R. § 20.1304(c)(1999) (generally subsequent to a 90- day window following certification of the appeal, in the absence of a showing of good cause, additional evidence will not be considered by the Board in the pending appeal and is referred to VARO for appropriate action). To ensure that the VA has complied with its due process obligations, the remaining claims are REMANDED to VARO for appropriate action: 1. VARO should again review the record with consideration of the recently submitted pertinent evidence. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 2. The appellant has the right to submit additional evidence and argument on the matter or matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). VARO must afford this claim. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the VAROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The appellant need take no action unless otherwise notified. The Board intimate no opinion as to the ultimate outcome in the pending claims. C.P. RUSSELL Member, Board of Veterans' Appeals