Citation Nr: 0003772 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 97-17 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral macular degeneration. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD T. S. Tierney, Counsel INTRODUCTION The veteran served on active duty from February 1973 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT The evidence added to the record since an unappealed April 1995 Board decision denying reopening of service connection for bilateral macular degeneration is redundant or cumulative of evidence previously of record or is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the veteran's claim for service connection for bilateral macular degeneration. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for a bilateral macular degeneration initially was denied in a rating decision of April 1987. The denial was continued in subsequent final Board decisions, to include an unappealed Board decision of April 1995 in which it was determined that no new and material evidence had been submitted to reopen the claim. In February 1996, the Board denied a motion for reconsideration of the April 1995 Board decision. The Board found that the veteran had submitted some additional evidence and referred the case to the RO to determine if the veteran had submitted new and material evidence to reopen the claim. In a rating decision of July 1996, the decision on appeal currently, the RO determined that no new and material evidence had been submitted to reopen the claim for service connection for bilateral macular degeneration. Generally, a claim which has been denied in a final Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(b) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. 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). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the April 1995 Board decision, the last final decision, included service medical records which show that the veteran entered service with decreased visual acuity, uncorrected as well as corrected, and mild corneal insult due to wearing contact lenses. The June 1972 enlistment examination showed normal eyes (excluding visual acuity). The veteran's distance vision in both eyes was 20/400, corrected to 20/50. A record dated in January 1974 notes that the veteran had a history of amblyopia and photophobia in both eyes since childhood. It was noted that there was no change in his visual acuity. The diagnosis was macular disturbance. The veteran continued to complain of visual defects interfering with his work. Later in January 1974, he was given a permanent profile and not to be assigned to any job requiring good vision in both eyes or a job requiring 20/20 vision in either eye. The diagnosis was bilateral macular degeneration. A consultation report dated in June 1974 notes that the veteran had probable macular degeneration in both eyes with a possible hereditary etiology. The physician noted that there had been no change in ocular status since the last examination in January 1974. The separation examination in November 1974 showed abnormal eyes. Distance vision was 20/40 in the right eye and 20/50 in the left eye. Near vision was 20/1000 in each eye. Other evidence of record at the time of the April 1995 Board decision included a private eye examination report dated in February 1985 which reflects distance vision of 20/200 in the right eye with 80 percent correction, and 20/300 in the left eye with 90 percent correction. Visual field and muscle function were normal. Depth perception was not present. It was noted that eye pathology was macular degeneration and Stargardt's disease. In addition, the examiner noted that the primary and contributory cause of the condition was hereditary. VA medical records include a discharge summary report of a hospitalization from January to February 1986. It was noted that the veteran had had decreased visual acuity, gradually starting when he was in the sixth grade, and that he was declared legally blind in 1984 by a private ophthalmologist. It was also noted that there was a positive family history with a sister who had the same eye problem. The additional VA outpatient treatment records basically show that the veteran's visual acuity continued to decrease and he was diagnosed with Stargardt's disease. A report received in May 1987 from M. A. Couts, O. D., and F. L. Babcock, O. D., notes the veteran's optometric history from August 1967 to January 1987. Prior to service in February 1973, the veteran complained of blurred distance vision. He was found to be near-sighted with a slight amount of astigmatism in each eye. He was fitted with contact lenses in December 1969. It was further noted that the medical records of treatment prior to service showed that no internal pathology was seen. Another statement from Dr. Babcock was received in December 1987 and notes decreased visual acuity from 1969 to 1982. It was also noted that the veteran was seen by Dr. Seward in 1971. The report from Geo. W. Seward, M.D., an eye, ear, nose, and throat specialist, provided a recommendation that the veteran wear gray lenses when working outside. Intraocular and extraocular findings were essentially normal. The veteran had blepharitis. Examination of the lid margins was not consistent with infection. It was noted that allergic manifestation to dust, etc, could be a factor. It was also noted in Dr. Babcock's statement that the veteran was diagnosed with macular degeneration in service in 1974. A statement was received from a Visual Impairment Service (VIS) Team Coordinator at the VA Medical Center in Indianapolis, dated in May 1991. He reported being familiar with the veteran's case since early 1985 when the veteran was referred for VA blind rehabilitation services. He noted that the veteran's macular disease was not diagnosed until well into his period of service and, until that time, the diagnosis of amblyopia should be considered a valid one. In addition, he noted that the assumption that the condition pre-existed service was in large part based on the veteran's reported history of poor vision since childhood and this would more likely be attributable to amblyopia or strabismus than to Stargardt's disease, which is most commonly manifested or diagnosed during adolescence or early adulthood. Although he acknowledged that there might be grounds for speculation as to the precise point of origin of the veteran's eye disease, he stated that there is no clear and unmistakable evidence that the condition pre-existed military service and the veteran was presumed to have been in sound physical condition at the time of his induction. A VA outpatient evaluation report dated in August 1992 demonstrates that the veteran was diagnosed with Stargardt's disease in approximately 1975. The veteran had received new glasses two to three weeks earlier. The veteran had reported that his vision was somewhat stable to slightly worse. The diagnosis was Stargardt's disease and it was noted that the veteran was legally blind. The veteran submitted a statement in April 1993 that the private medical records and his service medical records made it clear that the symptoms and diagnosis of macular degeneration were first presented while he was on active duty. The evidence added to the record since the April 1995 Board decision includes an undated statement from a VA Staff Ophthalmologist, received in July 1995. He noted that as the ophthalmology consultant to the Indianapolis VIS Team, he had had occasion to review the recent appellate decision concerning the veteran. According to this doctor, the macular degeneration diagnosed in 1974 was the same condition as Stargardt's disease, which progressed in the veteran's case to the point of legal blindness by 1984. He further noted that Stargardt's disease is a disease and not a disqualifying defect as defined in VA General Counsel Opinion No. 1-85. In addition, another statement from Dr. Couts was received in May 1997. This statement contains some of the same information that was in his joint statement with Dr. Babcock, received in May 1987. The later statement from Dr. Couts reiterates the history of the veteran's optometric care from August 1967 to April 1972. In the Board's opinion, none of the evidence received since the last final decision is new and material. In this regard, the Board notes that the evidence contained in the statement from Dr. Couts received in May 1997 was submitted in 1987 and previously considered. Accordingly, that evidence is not new and material. In regard to the undated statement from a VA Staff Ophthalmologist, received in July 1995, the Board notes that the VA Staff Ophthalmologist noted that the macular degeneration was diagnosed in 1974 and progressed to legal blindness in 1984. The veteran was released from active service in November 1974. This statement does not address whether the macular degeneration, which was diagnosed in service in 1974, was first manifested in service or whether it increased in severity during or as a result of service. In addition, the fact that Stargardt's disease is a disease and not a disqualifying defect was established by the evidence of previously of record and does not address whether the disease was incurred in or aggravated by service. ORDER New and material evidence not having been submitted, reopening of the claim for service connection for bilateral macular degeneration is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals