Citation Nr: 1314124 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-00 270 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a bilateral eye disability, to include blindness. 2. Entitlement to service connection for a bilateral eye disability, to include blindness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1973 to September 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2008 by the Detroit, Michigan RO that declined to reopen the claim for service connection for a bilateral eye disability. The Veteran testified at Travel Board hearing before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is associated with the Veteran's claims folder. In March 2013, the Veteran's representative submitted additional evidence and waived initial RO consideration. The records in the Veteran's electronic ("Virtual VA") file have been reviewed and contain VA treatment records from 1998 to 2012 that were considered by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The reopened claim of service connection for a bilateral eye disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed June 1998 rating decision denied service connection for a bilateral eye disability. 2. The evidence received since the June 1998 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection. CONCLUSIONS OF LAW 1. The June 1998 rating decision, in which the RO denied entitlement to service connection for a bilateral eye disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of service connection for a bilateral eye disability, to include blindness. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Since the decision below reopens the claim, there is no reason to further discuss the impact of the VCAA on this aspect of the matter since any notice defect or assistance omission is harmless. Merits of the Appeal to Reopen The Veteran initially raised the claim of service connection for a bilateral eye disability in October 1997, which was later denied by the RO in a June 1998 rating decision. This decision was not appealed, therefore, it is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The Veteran sought to reopen the claim in January 2008. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether a claim should be reopened, the credibility of newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The RO denied the claim in June 1998 because there was no treatment for an eye disorder in service or evidence that the claimed disability was incurred in or aggravated by her service. The evidence at the time of this decision consisted of the Veteran's service treatment records, an April 1998 VA examination report, and a report from the Michigan Department of Labor Commission for the Blind. The service treatment records include the enlistment examination and medical history reports that show the Veteran wore glasses or contact when she entered service. Eye refraction and astigmatism myopia were noted, but her eyes were otherwise found to be normal. A September 1997 letter from the Department of Labor's Michigan Commission for the Blind indicated the Veteran's diagnoses were myopia astigmatism and retina stretching. April 1998 VA examination reports show the Veteran reported being visually impaired since birth and that she had worn eye glasses all of her life. She reported that during basic training in October 1973 a trainee accidentally hit her in the right eye and that since then she had noticed a progressive loss of vision. The impression was that the Veteran may have questionable retinitis pigmentosa and that her keratoconus was secondary to Marfan's. The Veteran was also noted to be legally blind. Evidence added to the record since June 1998 includes records from the Social Security Administration, private treatment records dated in 1997 and 1998, VA treatment records from 1979 to 2008 (most of which are in the Virtual file), a transcript of an August 2009 hearing with a Decision Review Officer (DRO), a letter from Dr. D. W., a May 2012 Travel Board hearing transcript, and a January 2013 letter from a VA optometrist. There is sufficient evidence to reopen the Veteran's claim. In a January 2013 letter, a VA optometrist stated that the Veteran's eye conditions were retinitis pigmentosa and keratoconus. The physician noted retinitis pigmentosa was an inherited disorder that caused a gradual and progressive loss of peripheral vision and that the Veteran was born with this condition. Due to its gradual onset and progressive nature it was not usually diagnosed until later in life when symptoms became more apparent. After reviewing the Veteran's extensive ophthalmic record and service enlistment examination, the physician stated it was possible that the Veteran's time in service aggravated her condition. The physician also noted keratoconus was diagnosed and that it caused gradual and progressive thinning of the cornea and resultant blurred or distorted vision. There was evidence suggesting that patients with this condition have a genetic predisposition that could be triggered by any number of environmental, genetic, or cellular factors. The physician stated it was possible that the Veteran had keratoconus before her service but that it was possible that service aggravated her condition. Since there was no nexus evidence in June 1998 and the new evidence raises a reasonable possibility of substantiating the claim, the January 2013 letter is both new and material evidence. ORDER New and material evidence to reopen the claim of service connection for a bilateral eye disability to include blindness has been received and, to this extent only, the claim is granted. REMAND The optometrist's January 2013 letter states the Veteran has bilateral eye disorders that are hereditary in nature and that the retinitis pigmentosa existed prior to service while keratoconus may have existed prior to service since evidence suggests that the disorder has a genetic predisposition. These diagnoses along with the opinions brings to the forefront the question of whether the claimed disability is a congenital defect or disease and whether there was aggravation of a pre-existing disorder or service incurrence of an eye disorder. Generally, 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 and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). The provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Generally, a congenital disease or defect is not service connectable as a matter of express VA regulation. See 38 C.F.R. §§ 3.303(c) , 4.9 (2012). The only possible exception is if there is evidence of additional disability due to aggravation during service of the congenital disease, but not defect, by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. VA's General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). This General Counsel opinion concluded that a defect differed from a disease in that a defect is "more or less statutory in nature" while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at p. 2. Congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. §§ 3.303(c) , 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). Myopia, astigmatism, and presbyopia are all considered to be forms of refractive error. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Topic 10 (December 29, 2007). Actual pathology, other than refractive error, is required to support impairment of visual acuity. Id. Service connection may be granted for hereditary diseases, such as retinitis pigmentosa, that either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990) published at 55 Fed. Reg. 43253(1990) (a reissue of General Counsel Opinion 008-88 (September 27, 1988). A medical examination must be conducted to ascertain the nature of the eye disorders, to include whether any diagnosed eye abnormality pre-existed service and was aggravated beyond the normal progress of the disease during her period of military service and, if not, whether any other diagnosed eye disorder is etiologically related to military service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2009) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. An undated letter that appears to be to the Social Security Administration from Dr. D. W states he treated the Veteran from April 1981 to March 1998 for her eye disorders. The claims file does not indicate that these records were sought. Since these records are pertinent to the claim, reasonable effort should be made to secure them. During the August 2009 DRO hearing, the Veteran's representative suggested that the Veteran's service treatment records were incomplete, noting that specific records were not in the file. The Veteran testified that her copies of the records were lost in a tornado. There is a report of medical history prior to her separation from service, but there is no separation examination. She was unclear if a separation examination was ever conducted. To ensure thoroughness of the record, appropriate steps should be taken to determine whether a separation examination was conducted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The RO/AMC will ascertain if the Veteran has received any VA, non-VA, or other medical treatment for her eye disorders that is not evidenced by the current record. Specific records to obtain are private treatment records from Dr. D.W. The Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO/AMC should then obtain these records and associate them with the claims folders. 2. The RO/AMC will contact the National Personnel Records Center (NPRC) or any other appropriate locations and attempt to secure the Veteran's service separation examination report. 3. The RO/AMC will then schedule the Veteran for a VA examination by an appropriate examiner to determine the etiology and severity of her currently diagnosed bilateral eye disorders. The following considerations will govern the examination: (a) The claims folders must be provided to and reviewed by the examiner in conjunction with his/her examination to include the Veteran's contentions and any additional records obtained as a result of this remand. The examiner must indicate that a review of the claims folders has taken place. (b) The examiner must take a full history from the Veteran. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner must state so with a fully reasoned explanation for any such finding. (c) In all conclusions, the examiner must explain the underlying reasoning based on clinical experience, medical expertise, and established medical principles. When needed, the examiner should cite to specific evidence or cite to medical sources. (d) The examiner must respond to the following: * What are the current diagnoses pertaining to the Veteran's eyes/vision? * Did any of the diagnosed eye disorders exist prior to service? * State which, if any, diagnosed disability is considered to be a congenital disease or defect. Under VA law, a defect differs from a disease in that the former is considered "more or less stationary in nature" while the latter is "capable of improving or deteriorating. * With respect to any diagnosed congenital disease, was such aggravated beyond the normal progress of the disease during or due to the Veteran's military service? * If any eye disorder is a congenital defect, was there any superimposed injury in service that resulted in additional eye disability? * Is there any eye disorder that did not exist prior to service that is otherwise directly related to the Veteran's service? (e) Although the examiner is expected to conduct a thorough review of the claims file and the Virtual records, his or her attention is drawn to the following: * The Veteran's October 1973 enlistment examination report shows no abnormality was found regarding the eyes; however, eye refraction and astigmatic myopia were noted. The associated medical history reports shows negative responses were provided for eye trouble and positive responses were provided for having bilateral vision and wearing either glasses or contact lenses. * The July 1976 separation medical history also shows negative responses were provided for eye trouble and positive responses were provided for having bilateral vision and wearing either glasses or contact lenses. * A September 1997 ophthalmologist's letter indicates the Veteran's vision was 20/800 bilaterally at a distance and that her diagnoses were myopia astigmatism and retina stretching. * An April 1998 VA examination report showing the impression was questionable retinitis pigmentosa and Keratoconus secondary to Marfan's. The Veteran was also noted to be legally blind. * A January 2013 letter from a VA optometrist that indicates that the retinitis pigmentosa is a hereditary condition that existed prior to service and suggests that it may have been aggravated during service, and an opinion that the keratoconus may have existed prior to service and was aggravated by service. 4. Review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, the consider all of the evidence of record and readjudicate the issue on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and her representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs