Citation Nr: 1318949 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 07-30 929A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an eye disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1970, and from January 1977 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), which found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for an eye disorder. In September 2011, the Board issued a decision finding that new and material evidence had been submitted to reopen the claim for service connection for an eye disorder, and, after reopening, remanded the underlying service connection claim for further development. In the September 2011 remand, the Board requested that the Veteran be scheduled for a VA examination to determine the nature of his eye disease and to obtain opinions regarding whether clear and unmistakable evidence demonstrated he entered service with an eye disease, and, if so, whether clear and unmistakable evidence demonstrated that his eye disease was not aggravated by service. Although it appears that the VA examiner in October 2011 did not provide adequate opinions addressing the Board's questions, since the benefits sought on appeal are herein granted, the issue of whether there was substantial compliance with a prior remand is moot. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. There is no clear and unmistakable evidence of record showing that the Veteran's choroideremia both preexisted a period of active military service and was not aggravated therein. 2. The competent evidence of record shows that Veteran's choroideremia first manifested during his second period of active service. CONCLUSION OF LAW The Veteran's choroideremia was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). As the Veteran's claim is being granted herein, there would be no useful purpose in discussing whether VA satisfied the duties to notify and to assist the Veteran. II. Factual Background The Veteran essentially contends that his choroideremia had an onset during his second period of active duty, and has progressively worsened since then, such that he is now legally blind. Service treatment records (STRs) from the Veteran's first period of service show that on his October 1967 enlistment examination he was noted to have defective vision, but clinical eye and ophthalmoscopic examinations were normal, and he was found fit for duty. It was also noted that he wore glasses as a child. The October 1970 separation examination report reflects that the Veteran had normal clinical eye and ophthalmoscopic examinations, but there was a notation of "hyperopia - far sightedness." On his entrance examination in September 1976, for his second period of active service, there was a notation of defective vision, however, his clinical eye and ophthalmoscopic evaluations were normal and he was found fit for duty. In a December 1977 record it was noted that the Veteran complained of "eye strain" and "poor night vision." In February 1978, he was referred for an ophthalmology consultation, and it was noted that he complained of poor night vision, and that he had extreme thinning of retina away from macula with scatter pigment splotches. In March 1978, the diagnosis was initially retinitis pigmentosa, but then the Veteran underwent ophthalmologic evaluation, and the assessment included choroideremia. Thereafter in March and April 1978, he was placed on a physical profile due to choroideremia. In conjunction with a medical evaluation board, a consultation was obtained from a private physician, Dr. Gamel. In a March 1978 letter, Dr. Gamel indicated that the Veteran presented with a dramatic fundus picture that was highly characteristic of hereditary choroidal atrophy of some nature, and that his family history strongly suggested a sex-linked recessive disorder. Dr. Gamel indicated that on examining the Veteran's dilated fundus that his picture, although not entirely characteristic of choroideremia, was consistent with this diagnosis. STRs also include the service medical evaluation board reports dated in April and May 1978 which show that the Veteran was found medically unfit for duty due to poor night vision, or choroideremia. It was noted that he had night vision problems since age ten. It was also noted that there was no way to really tell the progression and future course of this particular disease (choroideremia), and that Dr. Gamel had opined that it was reasonable that the Veteran's visual loss may progress very slowly at this point, and he may retain some degree of visual function into old age. The May 1978 medical board report concluded that the choroideremia existed prior to service, had its approximate onset in 1960, was not incident to service, and was not aggravated by service. Lay statements from the Veteran, his spouse, friends, and relatives assert that the Veteran incurred an eye disorder during service or aggravated a pre-service eye disorder during service. In a letter dated in January 2007, a certified genetic counselor from the National Eye Institute indicated that the Veteran's DNA had been screened for any DNA mutation that causes choroideremia. Based on the testing, it was concluded that the Veteran's DNA analysis confirmed his diagnosis of x-linked choroideremia. In a letter dated in February 2008, the Veteran's private treating physician, Dr. Radkte, indicated he had examined the medical records for the Veteran, including his STRs. Dr. Radkte indicated that the Veteran was found fit for duty and then became disabled because of choroideremia. Dr. Radkte opined that the Veteran's vision deteriorated during his active duty, and also indicated that there was an "acknowledgement that a progression in severity did eventuate" and that there was no competent medical evidence to clearly rebut aggravation. On a VA examination in October 2011, the examiner indicated that the Veteran had "[c]horoideremia with documented genetic mutation and note from the National Eye Institute. The examiner opined that the nature history of this disease was to slowly worsen with age and may not be evidence when a patient is younger. The examiner indicated that there was no documentation of the disease when the Veteran was younger or when he entered the military as it was probably not evident then and the Veteran had few if any symptoms. III. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Every Veteran is taken to be in sound condition when examined, accepted, and enrolled for service, except for defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). If the condition now claimed was not noted when the Veteran entered service, then VA bears the burden of proof of rebutting this presumption of soundness when entering service. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). This is a two-pronged test, requiring clear and unmistakable evidence both that the condition was preexisting and that it was not aggravated during or by the Veteran's service or, if it was, that the worsening was not beyond the condition's natural progression. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). For there to be clear and unmistakable evidence of a condition's preexistence, there must be obvious or manifest evidence of this. Clear and unmistakable evidence is a more formidable evidentiary burden of proof than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Signed statements of Veterans relating to the origin or incurrence of any disease or injury made in service, if against his or her own interest, are of no force and effect if other data do not establish the fact. 38 C.F.R. § 3.304(b)(3). Moreover, a recorded history provided by a lay witness does not constitute competent medical evidence of a chronic preservice condition, even though the appellant's account of his preservice illnesses was recorded by medical examiners. Cf. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service when there is an increase in disability during such service, unless there is a 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(a) (2012). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). With respect to claims based on aggravation during active duty, a presumption of aggravation is triggered when the evidence establishes the presence of a preexisting condition which worsens during service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the presumption of aggravation arises, then the burden shifts to the Government to show a lack of aggravation by establishing that the in-service "'increase in disability is due to the natural progress of the disease.'" Id. The foregoing notwithstanding, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. To allow for proper legal analysis of a Veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect." See id; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If the claimed disorder is a "disease", an opinion may be required as to whether it was as likely as not aggravated by his period of active service beyond its natural progression. Ultimately, the determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other relevant evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. IV. Discussion Turning to the facts of this particular case, regarding existence of current disability, review of the record clearly shows that the Veteran has been diagnosed with and treated for choroideremia. Thus, there is sufficient evidence of a current disability. Further, the Veteran's service entrance and separation examinations from his first period of active service and his service entrance examination prior to his second period of active service were unremarkable for any complaints or clinical findings of any particular eye disease, to include choroideremia. Thus, the Board finds that it must be presumed the Veteran was in sound physical health when entering service. Further, the Board notes that the Veteran's choroideremia was first manifested in service in March 1978 - 14 months after the Veteran's entry into his second period of active service - and was diagnosed after the Veteran was evaluated after complaining of eye strain and poor night vision in December 1977. The Board readily acknowledges that the evidence of record arguably supports the proposition that the subject disorder preexisted service. However, the eye disease, choroideremia, was not diagnosed until he was already in service. Moreover, there is competent medical evidence, including Dr. Radkte's letter dated in February 2008, that suggests that the symptoms of his choroideremia had an onset during his second period of active service. In addition, competent statements from the Veteran's, his wife, family members, friends, and a fellow service member all indicate that the Veteran's eye problems did not start until his second period of active service. Although the most recent VA examiner in October 2011 appears to have also found that the Veteran's choroideremia pre-existed service, as evidenced by such condition being found to have been hereditary and congenital, the Boards notes that this VA examiner's opinion was incomplete and was not fully responsive to the Board's questions regarding whether the condition was aggravated during service, since the presumption of soundness is only rebutted when there is clear and unmistakable evidence both that the condition was preexisting and that it was not aggravated during or by the Veteran's service. See Wagner, supra. Here, the examiner did not address whether there was clear and unmistakable evidence that the Veteran's choroideremia was not aggravated during service and the record does not otherwise support such a conclusion. As such, the VA examiner's opinion and other evidence of record does not meet the burden of clear and unmistakable evidence that choroideremia both preexisted and was not aggravated during service. As previously noted, the standard to be applied in this case is not the "preponderance of evidence" but "clear and unmistakable evidence", and clear and unmistakable evidence is a much more formidable evidentiary burden than the preponderance of the evidence standard. Here, the Board finds that the evidence is debatable as to whether the appellant's choroideremia was aggravated during service. Therefore, as there is no clear and unmistakable evidence that choroideremia pre-existed service and was not aggravated therein, the presumption of soundness has not been rebutted. VAOPGCPREC 03-2003; see Wagner v. Principi, supra. Since VA has not satisfied the criteria for rebutting the presumption that the Veteran was in sound physical health, the resolution of his claim ultimately turns on whether the Veteran's choroideremia was incurred in service. The Board finds that a review of the evidence clearly shows that the first manifestation of choroideremia was in service in March 1978, and that choroideremia has been a recurring problem ever since. Given that the appellant is presumed to have been in sound condition at entry, the Board finds that it is reasonable to infer from the Veteran's STRs, and post-service medical records and examinations, that he has had problems with choroideremia continually since experiencing the problems he had in service beginning in approximately December 1977, and that such difficulties have culminated in his current diagnosis of choroideremia. The Board also notes that there is no competent medical opinion evidence of record to contradict such an inference. Further, the Board notes that in the February 2008 letter, the Veteran's treating physician, Dr. Radkte, after reviewing the medical records and STRs basically opined that the Veteran's choroideremia first manifested in service and that the Veteran was disabled due to choroideremia in service. The Board finds Dr. Radkte's opinion to be probative and persuasive on the issue of whether choroideremia had an onset in service, and also notes that Dr. Radkte's opinion was based on a review of the record, and included references to pertinent parts of the record. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that his choroideremia is chronic and has existed continually since service. The foregoing facts, and the benefit-of-the-doubt doctrine, provide a proper basis for granting the Veteran's claim for service connection. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for choroideremia is warranted. Gilbert v. Derwinski, supra. ORDER Service connection for choroideremia is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs