Citation Nr: 1317852	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  06-33 311	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for retinitis pigmentosa.


REPRESENTATION

Appellant represented by:	Theodore C. Jarvi, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and the appellant




ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The appellant is the widow of the Veteran, who had active service from February 1965 to September 1966. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 

In March 2008, the Veteran and the appellant testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C.  A transcript of the hearing has been associated with the claims file. 

The Veteran died in January 2012.  In May 2012, the Board dismissed the Veteran's claim for service connection.  In August 2012, the RO informed the appellant that she was accepted as a substitute for purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A (West 2002 & Supp. 2011) (A person eligible for substitution is defined as "a living person who would be eligible to receive accrued benefits due to the claimant . . .").  Accordingly, the appellant is substituted. 

Prior to the Board's May 2012 dismissal, it denied the claim on the merits in January 2010.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a Joint Motion for Remand (JMR) and vacated the Board's decision.  This matter was remanded to the Board for readjudication in accordance with the JMR, and in April 2011, the Board remanded the matter for additional development.  


FINDING OF FACT

There is equipoise in the evidence as to whether the Veteran's retinitis pigmentosa first manifested during his active service.


CONCLUSION OF LAW

Retinitis pigmentosa was incurred during active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist the Appellant

In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required.  The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the appellant.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. 
§ 3.303(a).  As a general matter, service connection for a disability on the basis of the merits of such a claim requires:  (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Cuevas v. Principi, 3 Vet. App. 542 (1992).  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b). 

Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto.  See 38 U.S.C.A. § 1111 (West 2002). According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports.  The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began.  See 38 C.F.R. § 3.304(b)(1).  Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  Id. 

Furthermore, a preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  

Congenital or developmental defects, and refractive error of the eye, are not considered to be diseases or injuries within the meaning of VA laws governing the award of service connection for diseases and injuries related to service.  38 C.F.R. § 3.303.  However, the VA General Counsel has rendered a legal opinion which holds that service connection may be granted for hereditary diseases, such as retinitis pigmentosa, which either first manifested during service or which pre-existed service and progressed at an abnormally high rate, presumably due to aggravation or to a superimposed injury during service. VAOPGCPREC 82-90 (July 18, 1990). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if:  (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. 

When there is equipoise, an approximate balance of positive and negative evidence, regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R.           § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The record before the Board contains voluminous records, including a number of statements from the appellant's attorney, and testimony provided to the Board, which will be addressed as pertinent.  Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.)  Given the favorable decision in the appeal, as well as the complexity of the medical question at hand, the Board will attempt to provide the most succinct recitation of the pertinent facts and history.  

The Veteran's service treatment records show he was nearsighted with astigmatism upon entrance in 1965.  On enlistment examination in February 1965, the Veteran's visual acuity was reported to be 20/400 corrected to 20/50 in the right eye and 20/40 in the left eye, and he was given an E2 profile for myopia.  An initial March 1965 optometry consultation noted that the Veteran's compound myopic astigmatism disqualified him from enlistment.  However, a subsequent March 1965 waiver examination noted that the Veteran had visual acuity of 20/400 bilaterally, corrected to 20/50, bilaterally; a diagnosis of compound myopic astigmatism was made and the Veteran was also noted to have failed the color vision test.  A waiver for general service was recommended as to both the astigmatism and the failed color vision test, and an E4 profile was made.  In June 1965, the Veteran underwent an ophthalmologic consultation which noted temporal disc changes and not well defined macular areas; all findings were noted to be very vague.  Refractive error was observed and glasses were ordered.  On discharge examination in March 1966, the Veteran's visual acuity was reported to be 20/400, bilaterally, corrected to 20/40, bilaterally, and an E3 profile was noted.  

The post-service medical evidence of record indicates that the Veteran was diagnosed with retinitis pigmentosa as early as 1972.  Specifically the Board notes a January 1981 treatment note that states by history that the Veteran was diagnosed with retinitis pigmentosa in 1972.  Additionally, an October 1973 certificate of attending physician notes that the Veteran was diagnosed with "myopic astigmatism and retinitis pigmentosus."  

In May 2007, a VA examiner opined that the Veteran's retinitis pigmentosa was not due to or a result of an in-service event, injury, or disease.  She stated that the patient had early symptoms of the disease upon entering service and that his best corrected vision at that time was 20/50, whereas it was 20/40 at discharge.  She also stated that the records indicated a typical course of retinitis pigmentosa.  

At a March 2008 hearing, the Veteran's representative, an optometrist and low vision specialist, stated that one of the first symptoms of retinitis pigmentosa is night blindness, which the Veteran reported first experiencing while in service in 1966.  He also stated that the Veteran's nearsightedness, high myopia, which was noted upon service entrance; was not a symptom of retinitis pigmentosa.  He opined that the retinitis pigmentosa was not hereditary in the Veteran's case because it was diagnosed just six years after service and because the Veteran does not have a family history of the disease.  Furthermore, he recommended that an ophthalmologist, retinal doctor, or a retinologist review the case rather than an optometrist.

In June 2009, the Board requested the medical opinion of an ophthalmologist in order to determine whether the Veteran's retinitis pigmentosa is a hereditary disease which either first manifested during service or which pre-existed service and progressed at an abnormally high rate during service.  In July 2009, a VA Medical Center (VAMC) Chief, Ophthalmology Section, Vitreoretinal Diseases and Surgery, determined, in essence, that the Veteran's retinitis pigmentosa did not manifest in service, or for many years thereafter.  The examiner noted that the Veteran's retinitis pigmentosa was not manifest in any service treatment records, but that the first evidence of the diagnosis in the record was during an October 1983 eye examination, nearly 17 years post-discharge.  The examiner explained that the earliest complaint for retinitis pigmentosa is most commonly night blindness, although the Veteran did not report symptoms of night blindness until after the fact.  The examiner noted that night blindness was not reflected in either of the SF 89s the Veteran completed in preparation for active duty, nor prior to discharge.  The examiner noted that although the Veteran did report color blindness, such is not a common early sign for retinitis pigmentosa and most likely represents hereditary color blindness common in males.  The examiner acknowledged the Veteran's myopic astigmatism on the service entrance examination and stated that though it is common to have increased problems with visual acuity at night with myopia, this does not represent true night blindness.  The examiner also noted a retinal examination in June 1966 in- service which described the macula as "not well defined" and showed "temporal disc changes," but stated that neither of these findings was suggestive of retinitis pigmentosa.  The examiner observed that the Veteran never complained of night blindness or visual field loss, another symptom of retinitis pigmentosa, while on active duty.  Confrontation visual field testing was recorded as normal on a March 1966 discharge examination.  Thus, the examiner concluded, in essence, that the Veteran's retinitis pigmentosa did not manifest in service and is not related to service.

Both the May 2007 VA examiner and the examiner in the July 2009 VA medical expert report incorrectly noted that the first diagnosis of record of retinitis pigmentosa was in October 1983.  As previously noted, the Veteran was indeed diagnosed initially at least a decade prior to that date.  As such, the Veteran was afforded a VA examination in May 2011 to again provide an etiological opinion with consideration of the earlier documented onset date.  

The May 2011 examination report noted that upon examination it was determined that the Veteran had end-stage retinitis pigmentosa, diabetes mellitus without retinopathy, and pseudophakia in each eye.  After a review of the record, the May 2011 VA optometrist opined that the Veteran's retinitis pigmentosa is not related to his active duty service.  The examiner reasoned that the Veteran's retinitis pigmentosa had likely clinically manifested upon entrance into service as evidenced by significantly decreased best corrected visual acuity of 20/50 in each eye at that time.  With regard to whether the Veteran's retinitis pigmentosa increased in severity while on active duty, the examiner cited the March 1966 exit examination noting that the Veteran was determined to be color blind, however without any indication on the entrance examination regarding whether the Veteran had been tested for color blindness it is impossible to know if this developed while the Veteran was on active duty.  The examiner further noted that the Veteran had been given a visual field test, but that there was no indication as to the type of visual field test that was afforded.  The examiner then opined that the Veteran likely received a screening visual field test which would not have been sensitive enough to diagnose a disease such as retinitis pigmentosa.  Finally the examiner opined that if the retinitis pigmentosa significantly increased in severity while the patient was in the service, the increase was due to the natural progression of the disease which is a slowly progressive, hereditary retinal degeneration that is characterized by decreased night vision, constricted visual fields, color vision abnormalities, and slowly progressive, decreased central vision, usually starting around 20 years of age, but is variable depending on the inheritance pattern of the disease.  The Veteran's records indicate a typical course of retinitis pigmentosa according to the May 2011 VA optometrist.

Given the medical complexity of this case, and the assertions of the appellant's private attorney that an ophthalmologist was required to render an adequate opinion; in August 2011, the Board sought an additional medical opinion.  

In an October 2011 response, a staff ophthalmologist at the VAMC in Sacramento, California, opined that the Veteran's retinitis, as likely as not, pre-existed his service.  She reasoned that there was no definitive testing performed to show retinitis pigmentosa until after service in 1974, about eight years after discharge, with an abnormal electroretinography (ERG) with severely depressed rod function.  She reported that prior to service, the Veteran had mild decreased vision, 20/50, in the right eye, and 20/40, in the left eye, on initial examination in February 1965.  She reported that his vision did not worsen during his time in service, as his March 1966 showed best corrected visual acuities of 20/40, bilaterally; and thus his vision remained stable during service.  She reported that while the Veteran was noted to be color blind, such may not be related to his retinitis pigmentosa, as although such is a disease known to cause color blindness, it is usually in the later stages when it affects the cone cells after mainly affecting the rod cells.  The expert reported that it is known that symptoms of retinitis pigmentosa include, in pertinent part, nyctalopia, dark adaptation problems, and decreased central vision starting as early as 20 years of age, and that posterior subcapsular cataracts (PSC) cataracts are also common.  She noted that the Veteran's high myopia and astigmatism can also be associated with retinitis pigmentosa, and he had decreased central vision in his 20's, high myopia and astigmatism, prior to entering service.  

She asserted that the Veteran reported that he developed night blindness while in service, and noted that there was no documentation of such.  She reported that although nyctalopia and dark adaptation problems are common symptoms of retinitis pigmentosa, complaints of having visual problems at night are very vague and may not be related to the Veteran's retinitis pigmentosa.  She asserted that in 1980, the Veteran had minimal PSC cataracts, although he was only 37 years old.  She noted that the Veteran's June 1965 examination was the only retinal examination seen during service and such showed "temporal disc changes and non well defined macular areas," non-specific findings that can be consistent with a variety of eye pathology, including that of high myopia or early non-specific findings of retinitis pigmentosa.  She thus concluded, based on the forgoing, that it was less likely that the Veteran's retinitis pigmentosa had its onset during active service.  She also opined that the Veteran's retinitis pigmentosa did not increase in severity during service, as it appeared to have increased after service; and reasoned that his best correct visual acuities were 20/50, in the right eye, and 20/40, in the left eye, in 1965; and his examination in March 1966 showed similar visual acuities of 20/40, bilaterally.  

In October 2011, the appellant's attorney submitted a medical opinion in support of the appellant's claim.  The board-certified ophthalmologist reported that he reviewed the entire claims file, and considered the lay statements of the Veteran and the appellant as to symptoms claimed during service.  The physician reported that retinitis pigmentosa goes from asymptomatic, to night blindness, to significant visual disability, to legal blindness; and the Veteran's symptoms evolved in a textbook manner, which was expected considering his ultimate diagnosis.  He reported that there was no question that the Veteran's retinitis pigmentosa was inherited retinal dystrophy.  He opined that there was no clear and unmistakable evidence that the Veteran's retinitis pigmentosa pre-existed service, and reasoned that there was no available evidence of any visual symptoms of retinitis pigmentosa noted in any available medical record prior to his February 1965 entry into service.  He instead opined that the Veteran's disease did not manifest itself until after he entered service.  He reasoned that the Veteran testified that he began to notice symptoms, such as having difficulty seeing at night, and that he stumbled over things and missed curbs while walking at night; and that the fundus examination during service showed disc pallor and disc changes, indications of a retinal problem, although no diagnosis was given.  

In October 2012, the appellant's attorney submitted an additional medical opinion in support of the appellant's claim.  The Division Chief of Retinal Disorders and Ophthalmitic Genetics at the University of California, Los Angeles, reported that he reviewed the claims file.  He asserted that in the Veteran's case, it is clear that he had no demonstrable changes in behavior or reported any events that would be attributable to symptoms that could be unequivocally attributed to retinitis pigmentosa prior to his active service, and that there was no evidence in his physical examination on entry into service of abnormalities that would be attributable to retinitis pigmentosa.  He reported that only reduced central acuities with high myopia and astigmatism and color blindness were noted; and reduced central acuities can be due to many causes, color blindness is present in six percent of the normal population of males, and high myopia, while associated with retinitis pigmentosa, is much more commonly seen as an isolated finding in the general population.  He concluded that as such, these clinical findings are insufficient to state that the manifestation of the Veteran's retinitis pigmentosa pre-existed service.  

He then opined that the Veteran's retinitis pigmentosa first manifest during active service.  He reasoned that he considered the Veteran's statements as to night blindness during active service.  He reported that he reviewed the Veteran's sworn statements and other written statements and found him to be an adequate historian.  He noted that there was no evidence in the claims file with which to question the Veteran's credibility, and that although the Veteran would not be competent to diagnose retinitis pigmentosa during service, the symptoms to which he testified were easily observable to laymen.  He noted that while the Veteran's March 2008 statements as to his in-service symptoms recalled symptoms occurring much earlier, when he was in service; the physician did not find that the passage of time reflected on the Veteran's credibility or accuracy of his recollections.  In this regard, he reported that he has observed in his practice that the inception of symptoms of vision loss, such as those reported by the Veteran, is very memorable for most people, especially when connected with specific actions and events, and that his patients normally remember such issues with great clarity.  He asserted that while there are other causes of night blindness, such as vitamin deficiency or congenital stationary night blindness; the demonstration of retinitis pigmentosa at a later time in the Veteran makes it almost certain that his symptoms of night blindness could only have been a consequence of his retinitis pigmentosa, as opposed to his blurred central vision, high myopia, or color blindness findings.  He also opined that there is considerable variability in the rates of progression of retinitis pigmentosa, as well as to the age at which patients become symptomatic, and there are no known environmental factors that contribute to disease progression.

The Veteran is competent to report a history of difficulty seeing at night, or night blindness, during active service; and there is no evidence that he is not credible. Layno, 6 Vet. App. 465, at 470.  While the Veteran's service treatment records are indeed silent for any complaints of difficulty seeing at night, or findings of night blindness, the Board finds that the Veteran's competent and credible testimony as to such is probative evidence in the present appeal.  In this regard, the Board considered the private physician's October 2012 discussion that patients in his practice with similar symptoms normally remembered such with great clarity.  

Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993). 

In this case, specifically, the most recent VA expert opinion, dated in October 2011, as well as the last two private opinions, dated in October 2011 and October 2012, were rendered with a review of the claims file, consideration of the Veteran's lay statements and those of the appellant, and with sufficient knowledge of the Veteran's pertinent history.  Significantly, it is these opinions that spoke directly to the Board's inquiries.  It is clear that there is disagreement among medical experts as to the whether the Veteran's retinitis pigmentosa manifested during active service, or pre-existed service, and the Board finds no basis upon which to reduce the probative value of the October 2011 and October 2012 VA and private opinions.  

In this regard, based on the forgoing, there can be no finding that the Veteran's retinitis pigmentosa clearly and unmistakably pre-existed service and was not aggravated by such service.  Thus, the Board finds that the Veteran is presumed sound at entry into service.  

Thus, the evidence supporting the appellant's claim is, at the very least, as persuasive as that against the claim, and the Board concludes that the evidence is in relative equipoise as to whether the Veteran was sound at entry and that his retinitis pigmentosa was first manifest during active service, warranting service connection.  As such, the claim of entitlement to service connection for retinitis pigmentosa is granted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, at 53. 


							(Continued on the next page)


ORDER

Service connection for retinitis pigmentosa is granted.




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs