BVA9501060 DOCKET NO. 91-55 314 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for residuals of a pituitary tumor, including defective vision, and, if so, whether the reopened claim may be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran served on active duty from August 1956 to August 1960. This matter came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. During the course of the appeal, the case was transferred to the RO in San Diego, California. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his pituitary tumor had its inception during his military service. He contends that defective vision noted on the report of his physical examination for separation from service in August 1960 was a manifestation of the pituitary tumor which was not diagnosed until 1967. 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 files. 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 to reopen the veteran's claim of entitlement to service connection for residuals of a pituitary tumor, including defective vision, has been received and that the veteran's claim may be granted. FINDINGS OF FACT 1. In a November 1980 decision, the Board denied service connection for residuals of a pituitary tumor with hypothyroidism; this was a final denial of the claim on the merits, whereas subsequent Board decisions, in effect, were denials of attempts to reopen the claim. 2. Evidence added to the record since November 1980 includes evidence which is not evidence previously of record and is sufficient, when viewed in the context of evidence previously of record, to establish a reasonable possibility of a different outcome. 3. The veteran's pituitary tumor, first diagnosed many years after service, had its onset in service. CONCLUSIONS OF LAW 1. Evidence received since the November 1980 Board decision denying entitlement to service connection for residuals of a pituitary tumor is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. The veteran's pituitary tumor was incurred in active service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(d) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Evidence of record in November 1980 when the Board denied service connection for residuals of a pituitary tumor included the veteran's service medical records which showed diminution of the veteran's visual acuity from 20/20, bilaterally, when he entered service to 20/40 in the right eye and 20/25 in the left eye at the time of separation from service. No other abnormalities were noted, and the veteran was referred for a refraction. Other evidence included June 1967 private hospital records indicating that the veteran had had recent visual symptoms with partial loss of visual field, bilaterally, and headaches. X-rays of the skull and tomograms of the sella turcica showed a marked degree of enlargement of the sella turcica, and a radiologist stated that the maximum dimensions of the sella were approximately 3.5 centimeters in depth and 3 centimeters in width. The radiologist recommended a course of radiation, initially, even though the tumor was of very large size, stating that presumably it was either a craniopharyngioma or a basophilic adenoma. The records show that radiation therapy had been completed by July 1967. Also of record was a VA hospital summary showing that the veteran was hospitalized from May to July 1977 because of gait disturbance. It was noted that about 10 years earlier the veteran had been discovered to have a pituitary tumor and that his symptoms started in 1961 with frontal headaches, lateral strabismus of the right eye and loss of libido. During hospitalization in 1977, the veteran was diagnosed as having hypothyroidism as a result of hypothalamic involvement of his pituitary tumor. The record also included VA hospital records showing that after extensive workup the veteran underwent exploratory surgery in June 1978 for the possible recurrence of the pituitary tumor; the post-operative diagnosis was cyst of the pituitary fossa. As noted earlier, the Board denied service connection for residuals of a pituitary tumor with hypothyroidism in November 1980. In a March 1984 decision the Board denied service connection for residuals of a pituitary tumor with hypothyroidism and loss of vision and in an October 1989 decision denied service connection for residuals of a pituitary tumor with hypothyroidism. On each occasion, the Board found that evidence added to the record did not establish a new factual basis that would permit a grant of the veteran's service connection claim. As neither of these decisions decided the veteran's claim on the merits, when determining if new and material evidence has been submitted to warrant reopening under 38 U.S.C.A. § 5108, the Board must consider all evidence added to the record since November 1980, because that is the date of the most recent final denial of the merits of the claim. See Glynn v. Brown, 6 Vet.App. 523, 527-29 (1994). Evidence added to the record since November 1980 includes a July 1981 letter from James S. Schutz, M.D., who reported that he had examined the veteran earlier that month. He summarized the veteran's history, reported the results of his examination and stated that there was a permanent loss of vision of both eyes as a result of optic atrophy in both eyes. He stated that the atrophy of the optic nerves was secondary to damage from the veteran's pituitary tumor. He also noted that there was a right exotropia secondary to the pituitary tumor. Dr. Schutz stated that the veteran's pituitary tumor became symptomatic during his military service and caused loss of vision in both eyes prior to discharge from service. In a March 1982 letter, Dr. Schutz stated that loss of vision is often the first and only symptom of individuals who suffer from pituitary tumor and, in many cases, years elapse between the onset of symptoms and total loss of vision. He also stated that the veteran's progressive loss of vision, which was already evident at the time of discharge from service, was typical of the visual loss caused by the growth of a pituitary tumor pressing on the optic nerves. Finally, he stated that the veteran's visual loss and pituitary tumor were both present at the time of discharge from service. In sworn statements taken by a VA field examiner in July 1983, two friends of the veteran, who reported they had known the veteran before and after service, stated that the veteran complained of headaches and eye symptoms within a few months after his return from service. They recalled that after visiting a doctor in about February 1961, he was required to wear an eye patch but that he continued to complain of headaches and pain in his eye. The veteran testified at hearings in March 1982, September 1986 and December 1992 and also submitted statements from his mother and sister concerning his vision problems following service. In written argument, the veteran's representative quoted material from a medical treatise to the effect that pituitary adenomas develop insidiously over long periods and achieve large size before being discovered. In a September 1994 medical opinion, the Chief of the Ophthalmology Service at the VA Medical Center in Washington, D.C., reviewed the record and stated that the combination of the tumor's size on diagnosis in 1967 and the veteran's history of adult onset non-vascular, non-traumatic strabismus, decreased libido, and headache strongly suggested that symptoms of the veteran's pituitary tumor were manifest in his first post-service year and that the tumor's onset was likely to have occurred while the veteran was still in service. The Board must first determine whether the evidence added to the record since November 1980 is new and material to warrant reopening the claim under 38 U.S.C.A. § 5108. New evidence is evidence that is not merely cumulative of other evidence in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Material evidence is sufficiently relevant and probative of the issue at hand to establish a reasonable possibility that the outcome would be different when the new evidence is considered in light of all the evidence. Id. Further, for the purpose of determining whether a claim should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). The Board finds that the evidence described above is new and material with regard to the veteran's claim. Specifically, the veteran's testimony under oath at hearings in 1982, 1986 and 1989 concerning symptoms and treatment shortly after service, as well as sworn statements by friends confirming that the veteran complained of headaches, eye pain, and was required to wear an eye patch within months after service are not duplicative or cumulative as they were not of record in November 1980 and are relevant as they relate to symptoms of the claimed disability. The opinions of Dr. Schultz and the VA ophthalmologist are also new and obviously relevant and probative of the issue of service connection for residuals of a pituitary tumor, including defective vision, as they opine that the veteran's pituitary was present in service. Further, if believed, the evidence added to the record presents a reasonable possibility of a change in outcome from the November 1980 Board decision. Having determined that new and material evidence has been added to the record, the veteran's claim for service connection for residuals of a pituitary tumor, including defective vision, is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Having determined that the veteran's service connection claim has been reopened, the merits of his claim must be evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 146 (1991). Under the law, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service in peacetime. 38 U.S.C.A. § 1131. Service connection can also be granted for brain tumor if it becomes manifest to a degree of 10 percent within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Service connection may also be established for disease diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As outlined above, the record shows that the veteran entered service with 20/20 vision, bilaterally, and visual loss was evident at his service separation examination in 1960. The Board has no reason to question the credibility of either the veteran's sworn testimony or the sworn statements of friends who reported that the veteran complained of headaches and eye pain shortly after service and was prescribed an eye patch for his symptoms. When diagnosed in 1967, the veteran's pituitary tumor was noted to be large, and two physicians, in comprehensive opinions, have related the veteran's loss of vision to his pituitary tumor and have pegged the time of onset of the pituitary tumor to his period of military service. Based on this evidentiary record, the Board finds that the veteran's pituitary tumor, first diagnosed seven years after service, had its onset in service, and the Board therefore concludes that service connection for residuals of a pituitary tumor, including defective vision, is warranted. ORDER Service connection for residuals of a pituitary tumor, including defective vision, is granted. ROBERT E. SULLIVAN 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 (CONTINUED ON NEXT PAGE) 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.