BVA9501601 DOCKET NO. 93-13 372 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased evaluation for a traumatic detachment of the retina of the left eye, currently evaluated as 30 percent disabling. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right eye disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Associate Counsel INTRODUCTION The veteran had active military service from January 1941 to December 1943. In a September 1975 rating determination, the regional office (RO) denied service connection for a right eye disorder. The appellant did not perfect an appeal of this decision and it became final. The present matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating determination which continued the denial of service connection for a right eye disorder on the basis that new and material evidence had not been submitted to reopen the claim. The RO also continued the 30 percent disability evaluation for the traumatic detachment of the retina of the left eye at that time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has submitted new and material evidence to warrant the reopening of the claim of entitlement to service connection for a right eye disorder. The veteran maintains that his eyesight has become worse in both eyes and he relates this to the inservice injury which caused the left eye retinal detachment. He maintains that service connection is warranted for his right eye disorder and that an increased evaluation is warranted for his left eye as a result of the worsening of his vision in both eyes. 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 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 the preponderance of the evidence is against the claim for an evaluation in excess of 30 percent for a traumatic detachment of the retina of the left eye. It is further the decision of the Board that new and material evidence has not been submitted to reopen the claim for entitlement to service connection for a right eye disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection for a right eye disorder was denied by the RO in a September 1975 rating determination. The veteran was notified of this decision and did not perfect his appeal. 3. Additional evidence received since September 1975 with regard to a right eye disorder is either duplicative or cumulative of evidence previously of record, or, when viewed in the context of all the evidence, does not create the reasonable possibility that the outcome of the previous denial of service connection for a right eye disorder would change. 4. The veteran has not been shown to have best correctable vision worse than 20/100-1 in his right eye. CONCLUSIONS OF LAW 1. Evidence received since the RO denied entitlement to service connection for a right eye disorder is not new and material; the September 1975 rating action is final. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1993). 2. The criteria for an evaluation in excess of 30 percent for a traumatic detachment of the retina of the left eye are not met. 38 U.S.C.A. §§ 1155, 1160, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.14, 4.79, Code 6070 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has submitted claims which are plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). I. Traumatic Detachment of the Retina of the Left Eye Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). The veteran is currently service connected for a traumatic detachment of the retina of the left eye. The nonservice-connected eye is considered to have normal visual acuity, 20/40 or better, in applying this schedule, unless there is blindness of the eye. 38 U.S.C.A. § 1160 (West 1991); 38 C.F.R. §§ 4.14, 4.79 (1993). A 30 percent evaluation is provided for blindness in one eye with visual acuity of 20/40 or better in the other eye. 38 C.F.R. § 4.84a, Code 6070. Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eyes reveals that perception of objects, hand movements or counting fingers cannot be accomplished at 3 feet, lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet, being considered of negligible utility. 38 C.F.R. § 4.79 (1993). A review of the claims folder demonstrates that the veteran sustained a detachment of the retina of the left eye as a result of having struck his forehead against a gun mount that caused a contusion of the left orbital region. A December 1943 clinical record reported visual acuity of 20/500 correctable to 20/50 in the left eye. A May 1944 Department of Veterans Affairs (VA) examination reported 5/200 vision in the left eye, correctable to 20/20, and a left eye retinal detachment. A June 1944 rating determination granted service connection for a detachment of the left retina with 20/20 vision in the left eye with a contraction of the left visual field, and assigned a ten percent disability evaluation. Bilateral myopia was also reported and found to be a condition which was in the nature of a constitutional or developmental abnormality and not a disability within the meaning of VA laws and regulations. A July 1945 VA examination again reported that the veteran had bilateral myopia and a left detached retina, but found the veteran's visual acuity to be 5/200in the left eye, uncorrectable, with contracted field. An October 1949 VA treatment record again noted the left eye retinal detachment and reported visual acuity of fingers at one foot in the left eye. A January 1950 VA examination reported that the veteran was only able to see fingers at 4 inches out of his left eye. A February 1950 rating determination increased the veteran's disability evaluation from 10 to 30 percent for traumatic detachment of the retina of the left eye. It also granted special monthly compensation due to loss of use of one eye. Records received from the veteran subsequent to the February 1950 rating determination demonstrate that the veteran's left eye eyesight has continued to worsen and that he presently does not have light perception in his left eye. As the veteran has been assigned the highest possible schedular disability evaluation for his service-connected left eye retinal detachment, since there has been no service-connected enucleation of that eye. See 38 C.F.R. § 4.84a, Code 6066. There are only two ways in which he may receive an increased evaluation: either on an extraschedular basis under 38 C.F.R. § 3.321(b)(1),or through a demonstration of blindness in the veteran's non-service-connected eye, through no willful misconduct of his own, under 38 U.S.C.A. § 1160. In order for a higher disability evaluation to be assigned under 38 U.S.C.A. § 1160, visual acuity must be shown to meet the requirements of 38 C.F.R. § 4.79. Outpatient treatment records demonstrate that visual acuity no worse than 20/100-1 was reported during this time period, with visual acuity of 20/70-1 being reported in February 1992. As the veteran has not been shown to have blindness in the right eye, the assignment of an increased disability evaluation under 38 U.S.C.A. § 1160 is not warranted. As previously noted, ratings shall be based, as far as practicable, upon the average impairment of earning capacity with the additional proviso that the Secretary shall from time to time readjust the schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, an extra- schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be granted. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1993). The service-connected injury has not required frequent periods of hospitalization. The disability picture is not otherwise shown to be so unusual as to preclude the use of the regular rating criteria. In this case, the disability shown is not so exceptional as to render impractical the regular schedular standards. As a result, it is the determination of the Board that an evaluation in excess of 30 percent for the traumatic detachment of the retina of the left eye is not in order on a schedular or extraschedular basis. II. Right Eye Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1993). Following notification of an initial review and determination by the RO, a notice of disagreement must be filed within one year from the date of mailing of notification, followed by a timely substantive appeal; otherwise, the determination becomes final and is not subject to revision absent new and material evidence. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103 (1993). 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 (West 1991). "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 fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1993). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The RO, in a September 1975 rating determination, denied the appellant's claim for service connection for a right eye disorder. While the veteran filed a notice of disagreement, to which the RO responded with a statement of the case, he did not file a timely substantive appeal. As such, the decision became final. 38 U.S.C.A. § 7105 (West 1991). Evidence available to the RO at the time of its determination included the veteran's service medical records, which noted that the veteran had 20/100 vision in both the left and right eye, correctable to 20/20, bilaterally, with glasses at the time of his service entrance examination. Service medical records subsequent to the veteran sustaining his detached retina, noted the veteran to have simple, bilateral myopia. A December 1943 service medical record noted the veteran to have visual acuity of 20/400, correctable to 20/50, in his right eye. On his certificate of disability for discharge, the veteran was reported to have visual acuity of 20/400, correctable to 20/50 in his right eye. Also available to the RO at the time of its decision were the May 1944 and July 1945 VA examinations, which reported that the veteran had a myopic astigmatism and simple, bilateral, myopia, respectively. A diagnosis of severe myopia, with the recommendation of refraction, was made in October 1949, while a diagnosis of bilateral myopia was made at the time of the veteran's January 1950 VA examination. Also available to the RO were the results of the August 1975 VA examination, which found the veteran to have choroidal sclerosis upon fundus examination of the right eye and visual acuity of 20/400 in the right eye, correctable to 20/25-2. A diagnosis of right eye refractive error was rendered at that time, with the examiner rendering an opinion that this was not related to the veteran's service- connected left eye detached retina. The RO based its denial on the fact that the examiner had indicated that the refractive error in the right eye was not related to the left eye condition and that the veteran's bilateral myopia was a constitutional or developmental abnormality and not a disability under the law. As previously noted, the veteran did not properly appeal this decision and it became final. Evidence added to the record subsequent to the September 1975 rating decision includes VA outpatient treatment records from July 1979 to February 1992; results of a February 1987 VA eye examination; the veteran's January 1993 substantive appeal; and the testimony of the veteran at his April 1993 personal hearing. The VA outpatient treatment records demonstrate that the veteran continued to have bilateral myopia. The veteran was also noted to have conjunctivitis in August 1984 and chronic open angle glaucoma by history in January 1985. Chronic open angle glaucoma was again diagnosed in August 1986. The veteran was also noted to have developed a cataract in his right eye in 1984. Chronic open angle glaucoma and myopia were again diagnosed in April 1989. While the aforementioned evidence is new in that it demonstrates that the veteran developed conjunctivitis, chronic open angle glaucoma, and a right eye cataract during this time period, it is not material in that there has been no medical evidence submitted indicating a link between these disorders and the veteran's period of service or service-connected left eye disorder. The first notation of chronic open angle glaucoma, which was by history only, did not occur until January 1985, more than 41 years following service separation. The diagnoses of bilateral myopia during this time period were merely cumulative in nature in that this was known to the RO at the time of its previous determination. Diagnoses of a right eye cataract and glaucoma were again rendered at the time of the February 1987 VA eye examination. As previously noted, while this information was new, it is not material in that these diagnoses were not related back to the veteran's period of service, or to any injuries sustained in service. At his April 1993 personal hearing, the veteran gave a history of the incident which caused his left eye detached retina and testified that he was told he had right eye optic nerve damage during service, while hospitalized at Harmon General Hospital. Transcript pages 2 and 3 (T. 2, 3). The veteran further testified that he began to notice a loss of vision in his right eye in the late 1950's or early 1960's. (T. 5). The history provided by the veteran at the time of his April 1993 personal hearing was cumulative in nature in that the history of how the injury occurred was previously known. While the testimony of the veteran with regard to his being told that he had right eye optic nerve damage while in service is new, his testimony is almost 40 years after the incident and a review of the service medical records demonstrates no such finding. Moreover, the veteran indicated that he did not notice a loss of vision until the late 1950's or early 1960's , more than 15 years after service. Furthermore, the veteran's account of what a doctor purportedly said is "too attenuated and inherently unreliable." Robinette v. Brown, No. 93-985 (U.S. Vet. App. Sept. 12, 1994), slip op. at 12. As such the testimony of the veteran is of such low probative value that it does not raise a reasonable possibility of changing the outcome of the prior decision. The fact remains that no current abnormality of the right eye has been medically attributed to any event during service. While the veteran expressed his belief that his present right eye disorders arose from his inservice trauma in his substantive appeal, his contentions are essentially cumulative in nature in that he had previously expressed this opinion. Moreover, he is not professionally qualified to render an opinion as to the etiology of any right eye disorder. In sum, additional evidence received since September 1975 with regard to a right eye disorder is either duplicative or cumulative of evidence previously of record, or, when viewed in the context of all the evidence, does not create the reasonable possibility that the outcome of the previous denial of service connection for a right eye disorder would change. New and material evidence has not been submitted to reopen the claim. ORDER An evaluation in excess of 30 percent for a traumatic detachment of the retina of the left eye is denied. New and material evidence not having been submitted to reopen a claim for service connection for a right eye disorder, the benefit sought on appeal is denied. WILLIAM J. REDDY 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.