BVA9503580 DOCKET NO. 93-09 972 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left eye disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Lori R. Bucci, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to November 1945. This appeal arises from a rating decision in July 1991 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In January 1946, the Los Angeles, California RO denied entitlement to service connection for a left eye disorder, to include high hyperopia, amblyopia exanopsia, and unilateral blindness. The veteran was duly notified of the decision; a timely appeal was not filed and the decision became final. Thereafter, the veteran submitted additional evidence in an attempt to reopen the claim; the RO found that the additional evidence on the issue of entitlement to service connection for a left eye disorder was not new and material. An appeal on that issue has ensued. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the visual impairment in his left eye was the result of an eye injury in service. 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 new and material evidence has not been submitted to reopen a claim of entitlement to service connection for a left eye disorder. FINDINGS OF FACT 1. In January 1946, the RO denied entitlement to service connection for a left eye disorder to include high hyperopia, amblyopia exanopsia, and unilateral blindness. 2. The evidence received since the January 1946 RO decision does not establish a reasonable possibility of changing the outcome of that prior decision. CONCLUSIONS OF LAW 1. The January 1946 RO decision which denied service connection for a left eye disorder, to include high hyperopia, amblyopia exanopsia, and unilateral blindness, is final. 38 U.S.C.A § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1994). 2. New and material evidence to reopen the claim for service connection for a left eye disorder has not been received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual Background The veteran’s honorable discharge certificate notes service on board the U.S.S. Aurora out of Juneau and Sitka, Alaska. Service medical records reveal that the veteran's uncorrected left eye visual acuity was 20/30 at his July 1942 enlistment examination. Corrected visual acuity was not measured. In December 1944, the veteran was examined for officer's candidate school, and found to have an uncorrected left eye visual acuity of 20/20. At his November 1945 separation examination, the veteran complained of having a bad left eye. Examination disclosed left eye uncorrected visual acuity of 20/100. Corrected vision was again not measured. At a December 1946 VA compensation examination, his left eye visual acuity was 20/400. The examiner noted that the media was clear and that the eye grounds were normal. Retinoscopic study disclosed approximately 8 diopters of hyperopia. The veteran accepted a plus 5 diopters, which increased his vision to 20/200. The examiner diagnosed high hyperopia, left eye; amblyopia exanopsia, left eye; and unilateral blindness. In July 1992, the veteran submitted a November 1960 eye examination conducted for the purposes of a driver's license. R. J. Ragland, a private optometrist, noted that the veteran's left eye vision was 20/600 , and 20/110- corrected. The optometrist reported that the veteran did not use his left eye, and that he had not in some time. He suggested that correction of the veteran's left eye visual acuity may cause diplopia. In September 1990, the veteran was seen at a VA outpatient clinic. The impressions included a macular and retinal left eye scar, and low vision in the left eye. In November 1990, the veteran certified that he injured his left eye when his ship, the U.S.S. Aurora, rolled in heavy seas while conducting convoy duty in the Aleutian Islands. In a June 1992 "buddy" statement, W. J. Orsello wrote that he did not witness the veteran's accident, but noticed the veteran with a severe eye and head injury. At an August 1992 personal hearing, the veteran testified that he and his representative, the American Legion, felt that the June 1992 "buddy" statement made by W. J. Orsello was ignored by the RO. The veteran stated that W. J. Orsello recalled that his eye was completely swollen shut. Attention was drawn to his service enlistment examination showing left eye vision of 20/30; his separation examination showing left eye vision of 20/100; and a December 1946 VA compensation examination showing left eye vision of 20/400. The veteran remembered that his eyes were examined on two other occasions in service, but these were cursory examinations. The veteran testified further that during service in the middle of a storm a hatch hit his left eye causing it to swell. He was treated by a corpsman. After the swelling went down, his eye remained blood shot for awhile. A week or so later his eye looked normal and he felt all right, but his vision seemed a little fuzzy. About the time of discharge, he began to have headaches and increased blurred vision. He informed VA doctors about his eye injury but the veteran noted that his records do not make much reference to the accident. The veteran stated that when he applied for his first drivers license after service, a doctor found that he was not using his left eye. Finally, it was reported that a VA eye specialist found a scar in his left eye. Analysis In January 1946, the RO denied service connection for a left eye disorder, to include high hyperopia, amblyopia exanopsia, and unilateral blindness. As the veteran did not perfect a timely appeal, the RO's decision is final. 38 U.S.C.A. § 7105. Pursuant to 38 U.S.C.A. § 5108 the veteran's claim may be reopened if new and material evidence has been presented. "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility, see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992)) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1110. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut the presumption. 38 U.S.C.A. § 1111. A developmental defect of the eyes or a refractive error is not a disease or injury for which service connection may be granted. 38 C.F.R. § 3.303(c). Hyperopia or refractive error may not be service connected on the basis of incurrence or progress. Veterans Benefits Administration Manual M21-1, Part VI, Subchapter II, para. 7.09 (b) (March 1992) (VA Manual). In the absence of evidence of either disease or injury, it is to be assumed that amblyopia exanopsia, that is, amblyopia from disuse, when based on refractive error, wherein one eye has an uncorrectable visual acuity of 20/100 (6/30) or less, existed from early childhood, regardless of the prior examinations of record. VA Manual at para. 7.09(c)(1). In this case the evidence available to the RO in January 1946, shows that the veteran at that time claimed that his left eye vision had deteriorated during his active duty service. No argument was then presented that a left eye injury was sustained in service. Clinically the veteran in 1946 showed high hyperopia, amblyopia exanopsia, and unilateral blindness. The veteran’s claim was denied based on the finding that his left eye defects were of developmental origin. The veteran’s current claim, and the evidence submitted in support thereof, hinges on the argument that a left eye injury was sustained during his active duty service, and that the deterioration of his left eye vision is due to that injury. In support of that claim the veteran has submitted sworn testimony, a lay statement, a driver’s license eye examination from 1960, and current clinical records showing the presence of a left eye macular and retinal scar. Significantly, however, while this evidence is new in the sense that it is now clinically evident that the veteran has a macular and retinal scar, and in the sense that the veteran has a lay affiant supporting his contention, the Board observes that the examiner who diagnosed a scar did not relate the scar to an inservice injury. Indeed, the only evidence which relates the putative injury to the nature and extent of the veteran’s current left eye disorder is that submitted by the veteran and his lay witness. Notably, however, neither of these individuals are trained in the field of medicine, and hence they are not competent to offer an opinion as to the etiology of either the veteran’s current left eye scar or low vision. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As a claim must be supported by cognizable evidence, Tirpak v. Derwinski, 2 Vet.App. 609 (1992), we find that while the veteran has submitted evidence that is new, he has not presented any evidence which raises a reasonable possibility of changing the prior outcome. The fundamental facts remain the same. Hyperopia remains a developmental disorder for which service connection may not be granted, and there is no evidence supporting the contention that a left eye injury caused amblyopia exanopsia, or that amblyopia exanopsia was aggravated inservice. Hence, reopening the veteran’s claim is not in order. In reaching this decision the Board observes that the veteran has argued that the putative injury was sustained while conducting convoy duties on board the U.S.S. Aurora. The Board is compelled by law to accept the veteran’s assertions to this extent to be true. Justus. Hence, the Board considered whether the provisions of 38 U.S.C.A. § 1154(b) were for application. In this regard, however, there is no indication that at the time of the claimed injury that the veteran’s ship was actually engaged in combat with the enemy. Accordingly, the new evidence that the veteran’s ship was on convoy duty does not, standing alone, provide a basis to reopen the veteran’s claim. In reaching this decision the Board acknowledges the fact that amblyopia exanopsia may also be associated with conditions other than refractive error, e.g., congenital cataract or early traumatic cataract. VA Manual at para. 7.09(c)(2). In this regard, however, neither the evidence available in 1946, nor the evidence submitted since shows a diagnosis of a traumatic cataract, or, more importantly, competent evidence linking such a disorder to the veteran’s active duty service. Thus, this manual provision does not provide a predicate upon which to reopen the veteran’s claim. While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER New and material evidence has not been submitted to reopen the veteran’s claim of entitlement to service connection for a left eye disorder. DEREK R. BROWN 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. In the case of a veteran who served in combat with the enemy during a period of accept as sufficient proof of service connection any injury alleged to have been satisfactory lay or other evidence of service incurrence if consistent with the hardships of service, notwithstanding the fact that there is no official record connection of such an injury may be rebutted by clear and convincing evidence to § 1154(b) (West 1991).