Citation Nr: 1314581	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  06-26 535	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for bilateral retinitis pigmentosa.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from November 1979 to February 1982.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  In that decision, the RO denied entitlement to service connection for bilateral retinitis pigmentosa.  The Louisville, Kentucky, RO now maintains jurisdiction in this case.  

The Board remanded the claim for additional development in August 2010 and September 2012; as explained further below there has been substantial compliance with the Board remand.  


FINDING OF FACT

The evidence of record weighs against a finding that bilateral retinitis pigmentosa is related to service.  


CONCLUSION OF LAW

The criteria for an award of service connection for bilateral retinitis pigmentosa have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.9 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

In the present case, notice was issued in March 2005.  However, complete notice was not issued prior to the adverse determination on appeal.  Fully compliant notice was later issued in a March 2006 communication regarding the degree of disability and the effective date of the disability, and the claim was thereafter readjudicated several times.  Any timing deficiency has here been appropriately cured.  Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). 

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Social Security Administration (SSA) records are in the file.  The Board finds the VA examinations of record to be accurate and fully explanatory.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Moreover, the statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

In August 2010 and September 2012, the Board remanded this claim for VA examination.  The Board finds that there has been substantial compliance with the remand, as the Veteran was afforded VA examination, most recently in March 2013.  See Stegall v. West, 11 Vet. App. 268 (1998).  The examination report was thorough and the examiner provided an opinion accompanied by a supporting rationale.  

In April 2013, the Board received a statement from the Veteran without a waiver for review by the RO.  The Board has reviewed the additional evidence but finds that such is essentially duplicative of prior statements of the Veteran.  Thus, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to issue a supplemental statement of the case (SSOC).  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002).  

Turning to the merits of the claim on appeal, 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. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; this applies only to diseases that are listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, bilateral retinitis pigmentosa is not listed and as a result this avenue of entitlement is not available.  

Congenital or developmental defects, such as refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation.  38 C.F.R. § 3.303(c), 4.9 (2012); See Winn v. Brown, 8 Vet. App. 510, 516 (1996).  Nonetheless, service connection may be warranted for a disability resulting from a superimposed injury or disease occurring during active service.  VAOPGCPREC 82-90 (July 18, 1990).  

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

The Board must also assess the credibility, and probative value of the evidence of record in its whole.  In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  In determining the probative weight, a medical opinion will be considered more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions.  See Nieves-Rodriguez, 22 Vet. App. 295.  

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau, 492 F.3d at 1377.  

In the present case, the Board finds that the preponderance of the more probative evidence of records weighs against the claim of service connection for an eye disability based on all of the evidence, as will be discussed below.  

The Veteran claimed in March and May 2005 statements that he was "sound" prior to service and started wearing glasses while he was in the military.  His doctor reportedly told him that he might have had his eye problem when he was younger without realizing it.  In July 2005, he stated in his notice of disagreement that he probably had eye problems when he was a teenager and the military missed it.  He asserted that because he starting wearing glasses in the military he must have had retinitis pigmentosa at the time.  He referred to VA's responsibility to rebut the presumption of soundness under 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b).  He also cited Kinnamen v. Principi, 4 Vet. App. 20, 27 (1993), in support of his claim.  Finally, on his August 2006 appeal form, the Veteran stated that the Army did a poor job of checking his eyes and he wore glasses after enlistment.  

The Board has considered the Veteran's own assertions, but does not find that the Veteran has described any symptoms of an eye disability other than to say he wore glasses in service.  He would be competent to report such symptoms under 38 C.F.R. § 3.159(a)(2).  Here, the question of etiology extends beyond an observable cause-and-effect relationship, such as a fall leading to a broken leg.  See Jandreau, 492 F.3d 1372.  The Veteran is not competent to address the etiology of his claimed eye disability in this instance.  

At the outset, the Board notes that the Veteran's soundness at the time of his entry into active service has been called into question.  VA regulations provide that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment.  38 U.S.C.A. §§ 1111, 1137 (West 2002); 38 C.F.R. § 3.304(b) (2012).  As the Veteran's service induction examination is absent from the file, the presumption of soundness applies.  Doran v. Brown, 6 Vet. App. 283, 286 (1994).  

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004); see generally Cotant v. Principi, 17 Vet. App. 116 (2003).  The government may show a lack of aggravation by establishing that either there was no increase in disability during service, or any increase in disability was due to the natural progress of the pre-existing condition.  38 U.S.C.A. § 1153 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).  

Additionally, 38 C.F.R. § 3.304(b) (2012) states: "Only such conditions as are recorded in examination reports are to be considered as noted."  

Regarding the characteristics of clear and unmistakable evidence standard, "the word 'unmistakable' means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable."  Vanerson v. West, 12 Vet. App. 254, 258 (1999). 

There is no absolute rule in statute, regulation, or case law requiring contemporaneous clinical evidence or precluding medical opinion in rebutting the presumption of soundness.  See Harris v. West, 203 F.3d 1347, 1349-51 (Fed. Cir. 2000).  Clear and unmistakable evidence rebutting the presumption of soundness can be any evidence of record.  However, "[t]he Board may find that the evidence is of such low probative value that it does not affect the 'unmistakability' of the evidence showing pre-service inception of the [disorder at issue]."  Vanerson, 12 Vet. App. at 261.  

In the instant case, a review of the service treatment records reveals that in October 1979 the Veteran underwent a physical examination for Army recruitment (not via a typical report of medical examination).  The Veteran had vision in both eyes and his color vision was normal.  An optometry record in November 1979 indicates that he had never worn glasses before entry into service.  Pupils were equal and react to light and accommodation.  Other findings were within normal limits.  He was given a prescription for eyeglasses.  

In a May 1980 medical history form that Veteran denied medical issues, being under care of a doctor, recent hospitalizations or having major diseases or problems.  In a February 1981 report of medical history, he denied eye trouble.  He denied wearing glasses or contacts and had vision in both eyes.  A February 1982 report of medical examination showed a normal clinical evaluation of the eyes with 20/20 vision bilaterally.  He was separated due to reasons other than physical disability.  

As no abnormal results were found relating to his eyes and there is no such condition recorded in an examination report, the Board finds that the Veteran was presumed sound on entrance with respect to his claimed eye disability.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).  As explained, refractive error alone is not a disability that may be service-connected.  38 C.F.R. § 3.303(c), 4.9; See Winn v. Brown, 8 Vet. App. at 516.  

The Board now consider whether the presumption of soundness can be rebutted in this case.  That is, whether it can be demonstrated by clear and unmistakable evidence that an eye disability existed prior to service and was not aggravated by service.  

Here, the claims file does not include any evidence, other than the Veteran's assertions about what a doctor might have told him about possibly having retinitis pigmentosa as a child.  See, Robinette v. Brown, 8 Vet. App. 69 (1995) (The connection between what a physician stated and a layperson's account of what was purportedly stated is simply too attenuated and inherently unreliable to constitute medical evidence).  

As a result, the Board finds that the evidence detailed above does not rise to the level of certainty required to conclude that the Veteran had an eye disability that unmistakably pre-existed his active service.  He denied wearing glasses prior to service.  Moreover, no other evidence clearly shows that he had retinitis pigmentosa at the time of his enlistment, or that any eye disability existed at entry into active service.  Therefore, the presumption of soundness as to this claim is not rebutted.  See 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304 (2012).  

Although the Veteran cites it in support, the Board finds this case is dissimilar to Kinnamen because in that case there was evidence in the service treatment records that the veteran had an eye disability that pre-existed service. 4 Vet. App. at 27.  There is no such evidence in the service treatment records here.  There is only evidence that the Veteran had a prescription for eye glasses; no eye disability was diagnosed.  

Based on the above finding, the Board need not consider whether an eye disability was aggravated by service, as it has been found not to pre-exist his active service.  Having established that the presumption of soundness has not been rebutted, it is then necessary to consider entitlement to service connection for an eye disability on a direct incurrence basis.  

Considering first the current disability requirement for service connection, in September 2004, Dr. M. wrote a letter explaining that the Veteran was referred for evaluation of his retinas.  Vision was 20/40 in the right eye and 20/30 in the left.  The impression was rod/cone degeneration or retinitis pigmentosa of both eyes.  Prognosis for vision was good for near term.  A clinical record from the same month showed complaints of blurred visual acuity for the past two to three years.  He noticed gradual decreasing visual fields especially in dim light.  He had floaters bilaterally for two to three years.  He also had multiple head injuries from running into things like cabinets and fighting.  Based on the evidence, the current disability requirement for service connection is clearly satisfied.  Shedden, 381 F.3d at 1167.  

Turning then to the second required element for service connection, in-service incurrence of a disease or injury, a review of the Veteran's service treatment records reveals no indication that he complained of or was treated for any eye disability during his service other than refractive error.  In fact, the Veteran denied eye problems in February 1981 and in February 1982 his eyes were clinically evaluated as normal.  

Additionally, the Board finds no medical evidence of a nexus in this case.  More recent VA records do not show any relationship between current eye disability and active service.  A January 2003 VA examination report with a past medial history did not mention any eye problems.  The Veteran only had vision problems in a June 2003 VA record when he lost his eye glasses.  In March 2004, at a general VA examination, the Veteran stated he had wavy lines in his visual fields and stated he needed to get his eyes checked; as referenced above, he saw Dr. M. in September 2004.  Still, in July 2008, an optometry consultation showed a normal fundoscopic examination and in April 2010, at a VA mental health examination, the Veteran stated that although retinitis pigmentosa was a chronic condition, he received no treatment for it.  

In November 2012, at a VA examination for the eye, the claims file and medical records were reviewed.  He complained of floaters and tunnel vision.  He was diagnosed with retinitis pigmentosa in about 2004.  He denied any vision problem upon entry and during active duty "other than requiring spectacles."  Service treatment records showed normal vision and ophthalmoscopy and separation papers noted discharge for reasons other than physical disability.  A physical eye examination showed that his pupils were equal round and reactive to light.  A slit lamp examination was normal, but fundus showed bone-spicule pigment clumping in both eyes with a mild waxy pallor to the disc.  The diagnoses were retinitis pigmentosa with severe visual impairment in both eyes; mild cataracts in both eyes; and ametropia (refractive error or subnormal vision with correction).  

The examiner explained that, functionally, the Veteran suffered degraded central vision and severe constriction of peripheral vision.  It was deemed unlikely that the ocular impairment was caused or aggravated by military service.  The Veteran's personal statement to the examiner and his service treatment records at entry clearly show the absence of a problem either at time of entry to service or during years of service.  Also, studies showed that the age of onset of retinitis pigmentosa was, on average, 35.1 and the median age was 36.5.  The onset ratio straightly increased with age until 65 years, so the onset ration was relatively low at young ages.  He cited two studies to support his conclusion.  Another examination given in March echoed this opinion and findings.  Thus, based on the Veteran's denials of eye symptomatology during service, considered in conjunction with the medical studies indicating that advancing age increased the likelihood of such disability, it was more likely that the currently diagnosis of retinitis pigmentosa had an onset following service.  

Regarding the November 2012 VA examiner's opinion of etiology, the Board finds it to be highly probative.  The opinion reflects a careful review of the Veteran's file, a thorough eye examination, requisite expertise and a reasoned opinion supported with accurate facts.  See Nieves-Rodriguez, 22 Vet. App. 295.  None of the currently diagnosed disabilities of the eyes (cataracts or retinitis pigmentosa) were found in service or related to service.   The Board assigns this opinion great weight.  Moreover, no other medical evidence of record refutes the findings of this examiner.  

The Board finds that the preponderance of the most probative evidence of record weighs against the claim of service connection for an eye disability and the claim is denied.  38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304.  In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine but the preponderance of the evidence is against the claim and that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Service connection for bilateral retinitis pigmentosa is denied.  



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs