Citation Nr: 1329783 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-47 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for retinitis pigmentosa, formerly characterized as bilateral retinal degeneration with defective vision. 2. Entitlement to service connection for retinitis pigmentosa, formerly characterized as bilateral retinal degeneration with defective vision. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant, Spouse ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to November 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2012, the Veteran and his spouse testified at a Board hearing held before a Veterans Law Judge in Roanoke, Virginia. A copy of the transcript (Transcript) is of record. In April 2012 and March 2013, the Board remanded the Veteran's appeal for additional development and adjudicative action. That development having been completed, the case has been returned to the Board for further appellate review. While the issue of whether the December 1967 rating decision that denied service connection for bilateral retinal degeneration with defective vision contained clear and unmistakable error (CUE) was listed as an issue on appeal at the time of the prior Board remands in April 2012 and March 2013, the Board does not currently have jurisdiction over this issue. Instead, the Board determined that issue was deemed inextricably intertwined with the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a bilateral eye disorder, and was referred back to the RO for adjudication in the first instance. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Since that time, the RO has issued a rating decision which denied that claim, dated May 17, 2013. Following a review of the Veteran's claims file, as well as the Virtual VA electronic records system, the Veteran has not perfected an appeal as to this issue, and therefore is not currently before the Board. See 38 C.F.R. § 20.202. The issue of entitlement to service connection for retinitis pigmentosa, formerly characterized as bilateral retinal degeneration with defective vision, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a final rating decision dated in April 2006, the RO denied service connection for a vision disorder. 2. Evidence submitted since the April 2006 rating decision is new and raises a possibility of substantiating the claim for service connection for a vision disorder. CONCLUSIONS OF LAW 1. The unappealed April 2006 rating decision that denied service connection for a vision disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. The evidence received since the April 2006 RO rating decision, which denied service connection for a vision disorder, is new and material; the claim of entitlement to service connection for a vision disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's new and material evidence claim is granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. II. Request to Reopen Based on New and Material Evidence The Veteran has claimed entitlement to service connection for a vision disorder. He contends that his current diagnosis of retinitis pigmentosa was incurred during his period of active service, for which he was ultimately discharged in 1967, following a Medical Board Report which found him unfit for active service. The Board notes that a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran's claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. In this case, the RO denied the Veteran's original service connection claim in a November 1967 decision. The rating decision discloses that the Veteran's claim was denied because it was determined that the retinal degeneration of his eyes began in 1964, prior to his period of active service, and because his visual acuity on enlistment in 1966 was 20/50 in the right eye and 20/100 in the left (both corrected to 20/30). It was further noted that the service department found that his disorder was not incurred in the line of duty, and any increase in severity was due to the normal progression of the disease. Subsequent rating decisions, dated in April 2006 and most recently in March 2009, found that new and material evidence had not been presented sufficient to reopen his claim. The Veteran was notified of the April 2006 decision, and of his appellate rights, via a letter sent to him that same month. He did not appeal that rating decision and it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 38 C.F.R. § 3.156(b) (2012) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. However, in the instant case, such regulation is inapplicable, as no new evidence pertaining to the Veteran's claim for service connection for a vision disorder was received prior to the expiration of the appeal period stemming from the April 2006 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Since the prior final decision, new evidence has been added to the claims file. The new evidence consists VA outpatient treatment reports, a VA examination report, and the Veteran's lay statements. Although the September 2009 VA examination ultimately resulted in a negative etiological opinion, addressed in further detail in the following section, the examiner indicated that retinitis pigmentosa, a genetic condition, can become symptomatic at any time and progressively affect a patient's vision. The Board notes that, per the evidence of record, there was no diagnosis for this disorder at any time prior to the Veteran's active service, and it was first diagnosed during his military career. As such, the examiner's statement opens the door to the possibility that this disorder did not, in fact, exist prior to service. It was further noted that the Veteran's vision worsened during service, just prior to his diagnosis. Coupled with the Veteran's service treatment records, also discussed in the following section, which demonstrates treatment for a vision disorder during his period of service which ultimately led to his involuntary discharge, this evidence taken as a whole may serve to establish that the Veteran's claimed disorder was incurred during, or is related to, his period of active duty. Accordingly, new and material evidence has been received to reopen the claim for service connection for a vision disorder. The Veteran's appeal to this extent is allowed. Entitlement to service connection for this issue, as well as for entitlement to service connection for a low back disorder, is addressed further in the Remand section below. ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a vision disorder; the claim is reopened and allowed to this extent only. REMAND Although the Board regrets any further delay in adjudicating the Veteran's service connection claim, pursuant to the duty to assist, the appeal must be remanded for further development. In this case, evidence of record establishes that the Veteran's vision was 20/30, corrected, upon enlistment. He indicated that his vision began to deteriorate prior to service, however there is no record of a diagnosis for retinitis pigmentosa at any time before 1967. At that time, a Medical Board found that the Veteran first had significant difficulty with his vision 3-4 years prior, at which time he was issued glasses to correct a refractive error. Upon examination, it was noted that the macula in both eyes was granular in appearance, and that there was nor foveal reflex. Scattered pigmented changes were also observed, non-characteristic of any specific disease but indicative of retinal degeneration. The Medical Board found that the Veteran's bilateral retinal degeneration created a significant decrease in the central visual acuity and relative loss of visual field, and that vision loss was progressive in nature. It was noted that the rate of progression could not be determined with any significant accuracy, and was almost certain to progress beyond its present status. Although the rate of progression was indeterminate at that time, the Medical Board nonetheless found that the Veteran's disorder was not aggravated by service, and instead amounted to normal progression. It was not clear how that assessment was reached, especially considering that the Veteran was fit for active duty in 1966, and then medically discharged the following year. It is important to note that 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). A preexisting 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). In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c). See also Quirin v. Shinseki, 22 Vet. App. 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, if it is determined during service that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches in this case, as retinitis pigmentosa was not diagnosed on, or prior to, enlistment, VA must show by clear and unmistakable evidence that the congenital disease preexisted service or was not aggravated thereby. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. In conjunction with his claim, the Veteran was afforded a VA examination in September 2009. The examiner noted that retinitis pigmentosa was a congenital disease, not a defect. It was determined that the Veteran's data processing tasks most likely did not aggravate this disorder, though the examiner did not expound on that theory. Moreover, the examiner did not determine whether the disorder was actually incurred prior to service. Here, the Veteran's disorder was first diagnosed during active duty. Finally, the examiner offered no explanation accounting for the fact that the Veteran was fit for duty in 1966, but was medically unfit in 1967, when it was noted that the congenital disease progressed at a normal rate. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military 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 symptoms capable of lay observation. See id. The threshold for finding a link between current disability and service is low. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. Therefore, in light of recurrent post-service treatment for a vision disorder, documented in-service treatment for such, and the credible reports of the Veteran, the Veteran must be afforded an additional VA examination in order to determine whether a vision disorder is etiologically-related to his period of active service. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall schedule an additional VA examination in the appropriate specialty so as to assess the nature and etiology of the Veteran's currently-diagnosed vision disorder. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The examiner must provide an opinion as to whether retinitis pigmentosa is at least as likely as not etiologically-related to the Veteran's military service. The Veteran's claims folder and eFolder must be made available to the examiner for review in conjunction with the examination. Following a review of the claims folder, to include the Veteran's statements in support of his claim, the VA examination of September 2009, his hearing testimony, and specifically the Veteran's service treatment records, the examiner should address the following: A) Whether it is at least as likely as not (50 percent or greater likelihood) that a congenital vision disorder first originated during active service. B) If it is determined that retinitis pigmentosa preexisted his period of active service, whether it is at least as likely as not (50 percent or greater likelihood) that a such disorder was aggravated beyond normal progression during the Veteran's active duty service. The examiner must discuss the fact that a vision disorder was not diagnosed upon entrance, and that the Veteran was fit for duty in 1966 and medically discharged in 1977 within the context of any opinion. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner should provide a clear rationale and basis for all opinions expressed. The examiner should also note in his or her opinion that a review of the claims file/eFolder was conducted, and must discuss pertinent evidence therein. If the examiner cannot provide an opinion without resorting to mere speculation for either claim, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. If the claim on appeal remains denied, the RO/AMC should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs