92 Decision Citation: BVA 92-18389 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-36 601 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for thoracic kyphosis and degenerative musculoskeletal disease of the thoracic and lumbar spine. 2. Entitlement to service connection for retinitis pigmentosa (choroideremia). REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD Siobhan Brogdon, Associate Counsel INTRODUCTION This matter came before the Board on appeal from a rating decision of January 1990 from the Portland, Oregon Regional Office (hereinafter RO). The veteran served on active duty from February 4, 1953, until June 9, 1953. Notices of disagreement were received in April and May 1990. Statements of the case were issued in May and June 1990. The substantive appeal was received in July 1990. Supplemental statements of the case were issued in December 1990 and March 1991. The appeal was received and docketed at the Board in July 1991. The appellant is represented in this matter by Blinded Veterans Association. That organization submitted additional written argument to the Board in September 1991. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he now has severe thoracic kyphosis and degenerative musculoskeletal disease of the lumbar and thoracic spine as the result of service. He contends that he was also accepted for service with no qualifying visual defects, and that symptoms of night blindness and irregular retinal pigmentation became evident shortly thereafter. He maintains that these symptoms were initial manifestations of choroideremia, and that the disease has progressed to the point that he has become legally blind. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for back disability as well as for choroideremia. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. Back disability was not clinically documented until many years after service. 3. The record does not reasonably substantiate either the service onset of retinitis pigmentosa (choroideremia) or the pathologic advancement of such process during service. CONCLUSIONS OF LAW 1. Thoracic kyphosis and degenerative musculoskeletal disease of the thoracic and lumbar spine were not incurred in or aggravated by service. 38 U.S.C. 1110, 5107. 2. Retinitis pigmentosa(choroideremia) was not incurred in or aggravated by service. 38 U.S.C. 1110, 5107; 38 C.F.R. 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We note that we have found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C. 5107(a). That is, we find that he has presented claims which are plausible. We are 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. 5107(a). Some of the basic facts are not in dispute. The record reflects that service medical records are unavailable, and may have been destroyed in a fire at the National Personnel Records Center. The veteran's separation document reflects that he was discharged from service on the basis of medical disqualification existing prior to entry on active duty and which was not aggravated by military service. I. Back Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C. 1110. As has been noted previously, service medical records are not available, and the Board is unable to verify any injury or complaint the veteran may have had concerning the low back in service. However, lack of service medical records is not necessarily fatal to a claim. Service connection may be conceded if there exists adequate circumstantial evidence of inservice symptomatology and clinical documentation of back symptoms immediately following service and continuing to the present. Such symptoms may reasonably be attributed to service. However, this is not the case in the current instance. The veteran has submitted no medical evidence of treatment for the back since service. The first clinical documentation of any low back disorder is shown upon VA examination in 1989. This is more than 35 years after service discharge, and far too remote in time to be causally related thereto. Any claimed inservice complaint or injury affecting the back must, therefore, be considered acute and transitory, resolving without residual disability, and unrelated to the current low back disorders. 38 C.F.R. 3.303. II. Choroideremia The veteran has submitted a service medical record dated in March 1953 which shows that he was prescribed eyeglasses for vision acuity of 20/50, bilaterally. Vision correction was achieved to 20/20, bilaterally, at that time. No reference was made to any other eye symptoms or disorder. The subsequent record is silent for any eye disability until 1989, when the veteran filed a claim for choroideremia which he stated had resulted in blindness. Correspondence submitted in support of the claim from him and eye care providers indicate that he had sought treatment for vision loss associated with the disorder as early as 1968. Congenital or developmental defects as such are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. 3.303(c). However, the Board has considered a recent VA General Counsel's Opinion (O.G.C. Precedent Opinion 67-90, 55 Fed. Reg. 43253 (1990)) which speaks to the matter of the propriety of service connection for diseases of familial origin, such as retinitis pigmentosa. It holds that a hereditary disease under 38 C.F.R. 3.303 does not always rebut the presumption of soundness found in 38 U.S.C. 1111 and 1137. Service connection may be granted for hereditary diseases which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service. The veteran has submitted a number of expert opinions advising that a diagnosis of a choroideremia could certainly have been made by the time of his entrance into the military. The Board concedes that he may well have had such symptoms coincident with service entrance. However, if this were the case, the test of whether or not the disorder may be considered to be service connectable in this instance is whether or not it progressed at an abnormally high rate during the period of active duty or was made quantifiably worse through any incident of active duty. It should be pointed out first and foremost that the reason for the veteran's discharge from service is not made clear in the record. However, he almost certainly had a more extensive vision examination in order for glasses to have been prescribed, and he, himself, has stated that irregular retinal pigmentation was identified in service. Therefore, the preponderance of evidence supports a finding that he might have had symptoms of retinitis pigmentosa upon service entrance. Consequently, it is entirely possible that evidence of choroideremia was discovered shortly after service entrance which caused the veteran to become an unsuitable candidate for further military training, and which led to his discharge a little more than four months after induction. The Board finds it highly improbable, however, that one can pinpoint four months in 1953 as the focal time frame in which symptoms of choroideremia underwent rapid progressive manifestations, and totally disregard the more than 16 years thereafter before medical attention was sought for the disorder. These facts preclude a finding that choroideremia was of service onset or progressed at an abormally rate therein. The veteran's unsworn statements to the contrary, as well as the clinical data and other statements submitted on his behalf must therefore be considered of diminished probative value under these circumstances and service connection must be denied. The Board has also considered the doctrine of benefit of the dout but finds that the evidence of record is not so evenly balanced as to resolve any such doubt in the veteran's favor in this instance. ORDER Service connection for thoracic kyphosis and degenerative musculoskeletal disease of the thoracic and lumbar spine is denied. Service connection for retinitis pigmentosa (choroideremia) is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * B. KANNEE (MEMBER TEMPORARILY ABSENT) ALBERT D. TUTERA *38 U.S.C. § 7102(a)(2)(A) (1989) (formerly § 4002(a)(2)(A), recodified in 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1989) (formerly § 4066, recodified in 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 (see sec. 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). 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.