BVA9503614 DOCKET NO. 92-19 883 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right eye cataract. 2. Whether new and material evidence sufficient to reopen a claim for service connection for a bilateral eye disorder has been received. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his brother INTRODUCTION The veteran served on active duty from December 1942 to December 1945. In March 1988, the Board of Veterans' Appeals denied service connection for left eye blindness with traumatic cataract, right eye amblyopia, headaches and photophobia. That decision is final. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in June 1991 and October 1991 from the Seattle, Washington, Regional Office. The June 1991 rating decision continued the prior Board denial of service connection for bilateral eye disorders. In October 1991, service connection for a right eye cataract was denied. Testimony was presented at the regional office. The Board remanded the case, and the appeal was returned for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended that eye abnormalities are of service origin and that the claim for service connection should be reopened. 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 claim for service connection for a right eye cataract is not well grounded and that new and material evidence sufficient to reopen a claim for service connection for a bilateral eye disability has not been received. FINDINGS OF FACT 1. Satisfactory evidence tending to establish the presence of a right eye cataract during service has not been presented. Satisfactory evidence linking a right eye cataract to service has not been presented. 2. The Board of Veterans' Appeals addressed the issue of entitlement to service connection for bilateral eye disability in March 1988. The benefit sought on appeal was denied. 3. Since the 1988 Board decision the appellant has petitioned to reopen the claim. The evidence submitted in support of the petition to reopen is cumulative and does not raise a reasonable possibility that the outcome would be changed. CONCLUSIONS OF LAW 1. The claim for service connection for a right eye cataract is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The March 1988 decision of the Board is final. New and material evidence sufficient to reopen the claim has not been submitted. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Right Eye Cataract The claim for service connection for a right eye cataract is a new claim. The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim for service connection for a right eye cataract. If he has not presented a well-grounded claim, the appeal must fail. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As we explain below, the claim is not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1993). The claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim. However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. A claimant would not meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Grottveit v. Brown, 5 Vet.App. 91 (1993). The evidence reflects that the service medical records were negative for a right eye cataract. In addition, evidence of a right eye cataract in proximity to separation from service has not been presented. We also note that the veteran is not competent to self diagnosis a condition because he is not a medical professional. Therefore, his claim and testimony are of no probative value in regard to whether a cataract was present during service. The only competent evidence received in support of the claim for a right eye cataract consists of a 1991 statement from J. H. Hodge, M.D. The doctor reported that: "I can tell you that he does have a beginning cataract in the right eye resulting in acuity of 20/40 rather than 20/20 and he has considerable problems with bright light. I think that it is quite likely that exposure to the extreme sunlight during his duty in the South Pacific could have resulted in a predisposition to cataract in the patient's right eye. So, in that way his problem is service connected." The comment from the doctor is vague and highly speculative. The doctor used terms of "quite likely," "could have" and "predisposed" in the same paragraph, rather than a definitive statement. When faced with similar phrasing, the United States Court of Veterans Appeals (Court) held that such a statement would not justify a belief by a fair and impartial individual that the claim is well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The decisions of the Court are binding upon the VA. At this time, the veteran has presented no probative evidence that would tend to support the claim. The service medical records are negative, the veteran's testimony is not competent (in regard to the attempt to self diagnoses), and the medical statement is speculative and equivocal. The Board has not been presented with probative evidence that would justify a belief that the claim is well grounded. Accordingly, the appeal is dismissed. We also note that the veteran was placed on specific notice that there was a duty to submit evidence of a well grounded claim. II. Right Eye (Finality) In March 1988, the Board of Veterans'' Appeals entered a decision. The Board, after reviewing the evidence then of record, including the service medical records and the post service evidence, determined that the veteran did not have right eye amblyopia, and that the complaint of photophobia was not due to an underlying disease process. The law, regulations and decisions of the United States Court of Veterans Appeals establish that the prior decisions of the Board are final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). When a claim is disallowed by the Board, the claim [generally] may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. section 7104 (b) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states: 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. Masors v. Derwinski, 2 Vet.App. 181, 184 (1992). First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. The new evidence may not be sufficient in and of itself, but it may be just enough, when all the evidence is considered, to create an approximate balance of positive and negative evidence which would entitle the veteran to the benefit of the doubt. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Since the Board's decision, the veteran has presented no probative evidence in support of the claim to reopen. The veteran has presented no evidence that he currently has amblyopia of the right eye. In fact, the May 1991 statement form J. H. Hodge, M.D., established that the right eye was normal for the veteran's age. Although the veteran complained of sensitivity to light, the veteran's complaint was already known and does not constitute new or material evidence. In regard to the subsequent report of a cataract, that disability was the subject of a new claim. Similarly, the veteran's testimony is duplicative of statements made at the time of the prior claim. The fact that the statements may have changed from a written form to sworn testimony does not change the character of the evidence. The veteran's recounting is not new. Godwin v. Derwinski, 1 Vet.App. 419, 424 (1991). In regard to the brother's testimony, nothing was added to the record. New and material evidence sufficient to reopen a claim for service connection for a right eye disability has not been presented. Accordingly, the claim is not reopened. III. Left Eye (Finality) In March 1988, the Board denied service connection for left eye blindness and traumatic cataract. The evidence, including of the service medical records, established that left eye blindness and cataract had preexisted service and had not been aggravated by service. The law, regulations and decisions of the United States Court of Veterans Appeals establish that the prior decisions of the Board are final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1100, 20.1105 (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1990). When a claim is disallowed by the Board, the claim [generally] may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. section 7104 (b) (West 1991). The exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states: 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. Masors v. Derwinski, 2 Vet.App. 181, 184 (1992). First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the claimant has produced new and material evidence, the case is reopened and the BVA must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. The new evidence may not be sufficient in and of itself, but it may be just enough, when all the evidence is considered, to create an approximate balance of positive and negative evidence which would entitle the veteran to the benefit of the doubt. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Since the Board's decision, the veteran has submitted evidence, including a statement from doctor Hodge, testimony, copies of service medical records and copies of service department regulations. The service medical records are copies and are not new. The service department regulations do not tend to establish that the left eye condition did not preexist service or that there was aggravation from service. The mere fact that the veteran may not have been qualified or that he should not have been accepted for service does not establish that there was incurrence or aggravation of the eye disability. The veteran's testimony is redundant of his prior claim and presents nothing that is new. Godwin v. Derwinski, 1 Vet.App. 419, 424 (1991). Also submitted is a copy of a VA decision regarding retinitis pigmentosa. This document is not relevant to the issue on appeal. The May 1991 statement from doctor Hodge reflects his opinion that although the original injury to the left eye was not service connected, he did serve his country as a one-eyed individual during a time of war and certainly deserves consideration of this long-term problem. The statement reflects the doctor's compassion. The VA also has compassion and respects the service performed during a time of war. However, the statement is clearly negative evidence and does not present a basis for reopening the claim. The doctor concedes that the blindness and cataract preexisted service and provides no indication that there had been an increase in severity during service. In essence, the medical statement does not establish that the eye condition was incurred in or aggravated during service. The doctors implied opinion that service connection should be granted merely because the veteran served is without any legal basis, is supported by no medical evidence, and is of no probative value. We conclude that the evidence submitted in support of the petition to reopen is not new and material. Decisions of the Court demand that the claim may not be reopened under such circumstances. ORDER The appeal for service connection for a right eye cataract is dismissed. The petition to reopen the claim for service connection for bilateral eye disability is denied. H. N. SCHWARTZ 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.