Citation Nr: 1324957 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 08-33 951A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for Usher syndrome. REPRESENTATION Veteran represented by: Blinded Veterans Association WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran appeared for a video conference hearing in March 2012, at which time he submitted additional evidence that was accompanied by a signed waiver of RO review. 38 C.F.R. § 20.1304(c) (2012). In a May 2012 decision, the Board remanded this issue for additional development, including providing additional notice to the Veteran as well as a VA examination with a physician experienced in genetic diseases. As will be discussed below, the Board finds the remand directives were substantially completed and therefore appellate review may proceed. D'Arie's v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Usher syndrome is a genetic defect, not a genetic disease. 2. Hearing loss was superimposed on a genetic defect in service; however, service connection for hearing loss has already been granted. 3. Vision impairment was not superimposed on a genetic defect in service. CONCLUSION OF LAW Usher syndrome is a genetic defect and was not incurred in service; superimposed hearing loss is already service connected. Decreased visual acuity was not superimposed during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the Veteran is seeking service connection for Usher syndrome. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. However, as indicated in an October 1997 VA audiological examination report, Usher syndrome is "a recessive genetic condition which includes congenital deafness and progressive loss of vision leading to eventual blindness." VA regulations provide that congenital or developmental defects are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). To that extent, the determination of this claim will depend on the application of VAOPGCPREC 82-90 (July 18, 1990). Under this precedential opinion of the VA General Counsel, service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin. In such cases, service connection is warranted if the evidence as a whole establishes that the condition in question was incurred or aggravated during service within the meaning of VA law and regulations. For congenital and developmental defects, if superimposed disease or injury occurs during service, service connection may indeed be warranted for the resultant disability. 'Disease' has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. Dorland's Illustrated Medical Dictionary 385 (26th Ed. 1974). In case law, the word has been variously defined as (for example) a morbid condition of the body or of some organ or part; an illness; a sickness. 12A WORDS AND PHRASES Disease, at 388 et seq. (1954). On the other hand, the term "defects," viewed in the context of 38 C.F.R. § 3.303(c), would be definable as structural or inherent abnormalities or conditions which are more or less stationary in nature. Although the medical evidence is conflicting, the Board finds the weight of evidence establishes a current diagnosis of Usher syndrome, a condition associated with hearing loss and vision loss. On one hand, the record reflects that he was diagnosed with Usher syndrome by his private physician, Dr. S.L., in August 1992. The doctor explained that Usher syndrome is a form of retinitis pigmentosa with nerve deafness. In addition, the diagnosis was confirmed by his private physician in June 2006 and recognized by a VA examiner in December 2012. On the other hand, the October 1997 VA examiner opined that the Veteran did not have Usher syndrome. Nonetheless, the Board finds the Veteran currently has Usher syndrome. Further, the Board finds the weight of the medical evidence supports a finding that Usher syndrome is a genetic defect, rather than a disease. Of note, in June 2001, the Veteran was evaluated by a private physician, Dr. R.C. He opined that the Veteran had Usher syndrome, described as "a recessively inherited disorder characterized by congenital nonprogressive sensory neural deafness of varying severity." As such, Dr. R.C's opinion indicates the Usher syndrome is an inherited genetic disorder, fitting the definition of a defect instead of a disease. Most recently the VA examiner in December 2012 clearly and unequivocally opined that Usher syndrome was "a defect not a disease." While the December 2012 examiner was not a genetic specialist, the Board finds that the examiner's 45 years of experience as an otolaryngologist and his review of the medical literature substantially complies with the remand request that the examiner have experience with genetic diseases. As such, the Board finds Usher syndrome is a genetic defect. As discussed above, service connection may not be granted for a genetic defect alone. 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990). Therefore, service connection may not be granted solely based on the Veteran's Usher syndrome, a genetic defect. However, service connection may be granted for a genetic defect if, during service a disease or injury occurred and superimposed on the genetic defect. In this case the resultant disability may be service-connected. In other words, if any disease or injury superimposed on the Veteran's Usher syndrome during his service than the resultant disability may be service-connected. See VAOPGCPREC 82-90. Throughout the period on appeal the Veteran has consistently asserted that his current loss of hearing and vision are related to his service. As a lay person, he is competent to report what comes to him through his senses, such as loss of hearing and vision. Layno v. Brown, 6 Vet. App. 465 (1994). However, he lacks the medical training and expertise required to provide a complex medical opinion as to the etiology of his current loss of hearing and vision. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore the Board will look to the medical evidence in determining the cause of the Veteran's current disabilities. Service treatment records reflect the Veteran had hearing loss in his right ear at entrance to service. During service, he was exposed to acoustic trauma which aggravated his hearing loss in his right ear and caused hearing loss in his left ear. As a result, he is already separately service connected for his bilateral hearing loss effective since his separation from service. This is significant because he is already service-connected for the superimposed disability of hearing loss he experienced during service. VA regulations provide that in order to avoid pyramiding a veteran shall not be evaluated for the same disability under various diagnoses. See 38 C.F.R. § 4.14. Under the spirit of this regulation, the Veteran also cannot be separately granted service connection for the same disability under different theories of entitlement. Therefore, because he is already service-connected for bilateral hearing loss which occurred during service, his loss of hearing cannot also be a superimposed disability on his genetic defect, Usher syndrome. As to vision loss, the medical evidence of record also establishes the Veteran currently has vision loss as a result of his Usher syndrome. For example, in his June 2006 letter, Dr. S.A. opined that the Veteran had Usher's syndrome with retinitis pigmentosa, a degenerative eye disease, in both eyes. However, the record does not establish that he experienced loss of vision during his service. Specifically, service treatment records were reviewed and do not establish the Veteran made any complaint of, or sought any treatment for, loss of vision during service. More persuasively, on the report of his July 1968 separation physical his eyes were noted to be in normal condition and his vision acuity was '20/20' in both eyes. Additionally, on his accompanying Report of Medical History, he indicated he did not experience any eye trouble. Therefore, service treatment records do not establish that he had any vision loss during service. Post-service treatment records do not reflect the Veteran had any loss of vision acuity until nearly two decades after he separated from service. Medical records establish that he sought treatment for loss of vision in 1989 and was diagnosed with retinitis pigmentosa at that time. Since then, his vision declined and he has been legally blind since 1993. However, the record does not include any evidence suggesting that he had loss of vision before 1989. Therefore, the earliest vision problems began over twenty years after he separated from service. The weight of the competent evidence also does not establish the Veteran's current vision problems are otherwise related to service. Instead, the evidence suggests his vision loss is due to his genetic disorder. For example in January 2002 a VA examiner opined the Veteran's retinitis pigmentosa was "only caused by a genetic disorder." In November 2000 a different VA examiner opined that there was no causal relationship between the Veteran's service and his retinitis pigmentosa. As such, the weight of the medical evidence does not establish the Veteran's current vision loss either began during or was otherwise caused by service. As his loss of vision did not begin during, or was otherwise caused by, service, it is not a disease or injury that superimposed on Usher syndrome during his service. Based on all of the foregoing, the Board finds that the evidence does not establish service connection for Usher syndrome. Usher syndrome is a genetic defect, and as such service connection could only be granted if a disease or injury superimposed on defect during service. However, the Veteran is already separately service-connected for the superimposed disability of bilateral hearing loss. Additionally, the weight of the evidence of record does not establish the Veteran's current loss of vision began during, or was otherwise caused by service. As such this disability was not superimposed on Usher syndrome during service. He has not asserted, and the evidence does not establish, any other disease or injury superimposed on Usher syndrome during service. In sum, no disease or injury that is not already service-connected was superimposed on Usher syndrome, a genetic defect, during service. The weight of evidence is against the claim. Therefore, the appeal is denied. Finally, 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, 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also provided additional notice regarding genetic diseases in July 2012. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in the same letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO obtained VA and private treatment records, as well as service treatment records. Throughout the course of this appeal, the Veteran has also been provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the claim. The examiners were familiar with the Veteran's service and medical history, as well as his current condition, and provided the information necessary to evaluate his disability. Finally, the Board finds that additional development requested in the May 2012 remand was substantially completed. First, the Board requested the Veteran be furnished with a 38 C.F.R. § 3.159(b) notification letter informing him of the requirements for congenital or developmental diseases versus congenital or development defects. The record reflects that he was provided with a notice letter in July 2012 which informed him of the requirements for service connection for congenital or developmental diseases. As such, the Board finds that he was substantially informed of the requirements for service connection for a disease of congenital or familial origin. Second, the Board requested all VA clinical record from the Atlanta VAMC for the period from May 2006 to present be obtained and associated with the claims file. These actions were completed and the referenced files are included in the claims file. Third, the Board requested the Veteran be provided with a VA examination with a physician who had experience with genetic diseases. In his February 2013 written statement, he asserted the remand instructions were not complied with because he was provided with a physician appointment "in Audio" in early December 2012 instead of a physician with experience in genetic diseases. Review of the record reflects the Veteran was provided an examination in July 2012 with an audiologist and in December 2012 with an otolaryngologist, an ear, nose, and throat specialist. Although neither physician was explicitly identified as an expert in genetic diseases, the examiner in July 2012 was an otolaryngologist with 45 years of experience. As noted above, the Board finds over four decades of experience in the specialty of otolaryngology provided this physician with sufficient knowledge of Usher syndrome so as to provide an opinion in this case. The examiner also indicated he was familiar with current medical literature on this topic. Finally, the examiner unequivocally stated his opinion and provided a rationale in his report. As such, the Board finds that the remand directives were substantially complied with, and the Veteran was provided with an adequate examination. Therefore appellate review is proper. Stegall v. West, 11 Vet. App. 268 (1998). As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for Usher syndrome is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs