BVA9500029 DOCKET NO. 93-09 116 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for an eye disorder including atypical pigmentary retinopathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active duty for training from December 17th to December 30th, 1961, and from July 22, 1962, to August 4, 1962. He had active military service from October 1962 to July 1963. A rating decision dated in May 1966 denied service connection for an eye disorder, including bilateral macular retinitis. In a decision dated October 24, 1980, the Board of Veterans' Appeals (Board) denied entitlement to service connection for an eye disability. Although the Board did conclude that a "new factual basis" had not been presented, it is clear that the decision rested on a "de novo" analysis in that it addressed and assessed all the evidence then of record and applied the law governing original claims. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends in his substantive appeal that his bilateral maculopathy was first manifested during active service; thus, he desires consideration of provisions pertinent to the presumption of soundness at acceptance for service. He points out that he was accepted for active duty in 1962 without reservation and discharged due to his eye problem. In a July 1992 statement, he requested consideration of recent changes in interpretation of the law regarding the criteria for service-connection for hereditary disease. DECISION OF THE BOARD The Board of Veterans' Appeals (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 veteran'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 has not been received to reopen the claim. FINDINGS OF FACT 1. Service connection was denied for an eye disorder by the Board in October 1980. 2. The evidence submitted since the October 1980 Board decision pertinent to the eyes is not so significant that it must be considered in order to decide the merits of the claim. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted to reopen a claim of service connection for an eye disorder, classified as atypical pigmentary retinopathy. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. The October 1980 Board decision which denied service connection for an eye disorder is final, and the claim is not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claim is well grounded and adequately developed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active peacetime service. 38 U.S.C.A. § 1131 (West 1991). The 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 evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b)(1993). A pre-existing disease or injury will be considered to have been aggravated by active service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity in service. This includes medical facts and principles which may be considered to determine whether the increase was due to the natural progress of the condition. Aggravation of a pre-existing disease or injury may not be conceded where the condition underwent no increase in severity during service on the basis of all of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including post operative scars, or absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1993). Recent interpretation of Department of Veterans Affairs (VA) law regarding entitlement to service connection for hereditary disorders has distinguished between hereditary diseases and defects, emphasizing that the former is capable of improvement or deterioration while the latter is static. Service connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. See Op. G.C. Prec. 82-90 (July 18, 1990). If new and material evidence has been received since the last final denial of the merits of a claim, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; Glynn v. Brown, 6 Vet.App. 523 (1994). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The last final denial of the merits of the instant claim was the October 1980 Board decision. Evidence available prior to that decision included service medical records. An enlistment examination in September 1961 disclosed uncorrected visual acuity of 20/20, bilaterally. On a report of medical history dated July 17, 1962, the veteran answered in the affirmative to the question whether he then or in the past had "eye trouble." In the physician's summary, the comment was "glasses for corrective vision." On a report of medical history dated October 10, 1962, the veteran again answered in the affirmative to the question whether he then or in the past had "eye trouble." On an October 10, 1962, examination report, under the heading, summary of defects and diagnoses, it was stated that visual acuity was 20/40 in the right eye and 20/30 in the left eye, uncorrected with PHT. On October 12, 1962, uncorrected visual acuity was described as 20/40+ in both eyes. At an ophthalmologic examination on October 15, 1962, the veteran stated that he had noted a gradual decrease in visual acuity for the prior 2 or 3 years. This had not been improved by glasses. Visual acuity at the time of the ophthalmologic examination was 20/40 in the right eye and 20/40+1 in the left eye. It was worse on pinhole examination. The examiner observed that the macula had a metallic sheen, exudates, and zones of pigmentation and depigmentation. The impression was congenital macular degeneration of both eyes. At military hospital treatment from October to November 1962, the veteran gave a history of gradual, painless decrease in vision over the past 2 or 3 years, without patterns of exacerbations and remissions. Ocular history was otherwise negative except for some evanescent flashing of small lights in either eye. Past and family histories were negative for ocular pathology. Ocular examination revealed visual acuity was 20/30 in the right eye and 20/30- in the left eye if the veteran was allowed to study the chart with some intent. He could read 20/40 with each eye quickly. There was some improvement with refraction; however, glasses made no real difference in distant vision. The veteran had good close vision. The exact etiology of the macular problem seen on examination was not clearly established. There was reportedly no evidence that the problem was progressive at that time, and the diagnosis was bilateral retinitis of the maculae which was found to have existed prior to active duty. The veteran was seen several times in January 1963 with complaints of failing vision. Visual acuity with correction was 20/25-2 in the right eye and 20/25-3 in the left eye. Ophthalmologic examination was essentially unremarkable except for bilateral macular changes, retinal thinning and pigmentary migration. Examination of visual fields the same month showed bilateral antral scotoma, which was assessed as bilateral third or fourth degree central scotoma. Visual acuity with correction later that month was 20/40 in the right eye and 20/30-1 in the left eye, and it was the examiner's opinion that the veteran's eye disability remained unchanged from his time of entry onto active duty. The examiner questioned the veteran's ability to perform his military duty due to this disorder. Treatment at a military hospital from May to June 1963 revealed the veteran's history of noting little or no change in his condition during the previous 6 months, although it was observed that his visual performance aboard ship had been unsatisfactory. Ophthalmologic examination showed that visual acuity was 20/40 in each eye, correctable to 20/30 bilaterally. These acuities were for dim light. In bright light, correction was only to 20/40 bilaterally. Both eyes were outwardly light and quiet and appeared normal throughout except for the macula, where there was an area about one-half disc in diameter in size, irregular in outline, which appeared to be thin and to have a metallic sheen. Central visual field testing revealed bilateral relative central scotomas measuring 3 to 5 degrees in radius from the point of central fixation. The fields were otherwise full with normal blind spots. The diagnosis was revised to degeneration of the macula, bilateral, type unknown. In October 1963 at the Indiana University Medical Center, examination of the veteran's eyes revealed that the fundi were clear. Visual acuity was 20/25 in the right eye and 20/30 in the left. At an Indiana University Medical Center examination in May 1965, he complained of failing a vision test for employment. He said he had been told he had hereditary macular degeneration. At that time his visual acuity was 20/60+1 in the right eye and 20/30+1 in the left eye. Both eyes had mottled macula with some small white streaks and irregular reddish areas, and no peripheral lesions. Visual acuity later that month was reported as 20/40 in the right eye and 20/30-2 in the left. These records were first in March 1979. The May 1966 rating decision denied service connection for bilateral macular retinitis based on a finding that the evidence of record clearly established the preservice existence of this eye disease, and that such was not aggravated by active service. Although a copy of the letter notifying the veteran of this decision is not of record, an April 1972 letter from the RO to the veteran states that he was notified of the decision on July 1, 1966. A VA doctor advised in an August 1976 letter that the veteran had visual acuity of 20/300 bilaterally, which was permanent, and not treatable. Multiple medical records, dated after August 1976, showing evaluation and treatment for ocular pathology have been submitted. The veteran testified at a personal hearing in June 1979 as to the nature and extent of his military service as it pertained to his eyes and the course of his defective vision. In particular, he testified that he had noticed that his vision was diminished but thought that a pair of glasses would take care of it, when in October 1962, it first became the subject of medical attention. (transcript of hearing at pages 1, 6.) Additional medical records dealing with ocular pathology during the 1980s and 1990s have been received. In March 1987, the veteran underwent VA eye examination, where the impression was bilateral pigmentary maculopathy, stable. The veteran was noted to be legally blind. VA eye examination in November 1992 revealed a long history of poor vision due to atypical pigmentary retinopathy, slowly getting worse. The assessment was unknown bilateral pigmentary maculopathy, visual acuity slightly worse than in 1987. We have considered all of the evidence received since the Board decision of October 1980 and compared it with that available before that determination. The only question raised by the instant appeal is whether the evidence received since that decision is new and material. The evidence received after the 1980 Board decision essentially shows that the veteran's bilateral macular pathology progressed until his visual acuity reached his current status of legal blindness. No probative evidence has been received to show an increase in disability during service. The veteran, as a layman, is not qualified to render a opinion on the status of his eye disorder which requires medical knowledge. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The additional evidence essentially shows a continuation of the pathology that was identified during service. We have considered the veteran's argument that he is entitled to service connection due to the effect of the liberalized interpretation of laws pertinent to hereditary diseases. On the assumption for the sake of argument that the condition is hereditary, the General Counsel's opinion does not affect the Board's conclusion in 1980, that the evidence of record clearly established that the pre-existing macular pathology, whatever its origin, remained unchanged by service. ORDER As new and material evidence has not been received to reopen the October 1980 Board decision, service connection for an eye disorder, including atypical pigmentary retinopathy, remains denied. JOHN E. ORMOND 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.