Citation Nr: 1330099 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-38 032A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for retinitis pigmentosa. 2. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 13, 2013. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from December 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. In November 2012, the Board reopened and remanded the claim for service connection for retinitis pigmentosa and remanded the claims for an initial rating in excess of 50 percent for PTSD and a TDIU to the RO via the Appeals Management Center (AMC), in Washington, DC. Specific to the retinitis pigmentosa, the Board requested that the Veteran be issued a notice letter, asked to identify any treatment he received, and afforded an examination. Accordingly, the AMC issued a notice letter in December 2012, in which the Veteran was asked to identify any treatment records. He did not reply. Thus, the Board finds that no further duty to assist in obtaining any treatment records is required to comply with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). The AMC afforded the Veteran an examination in February 2013 and obtained an addendum in March 2013, and a review of those documents reflects that there has been substantial compliance with the remand directives. See id. In February 2013, the AMC increased the rating for PTSD to 100 percent effective February 13, 2013. Although the issue of a higher rating for PTSD since February 13, 2013, is moot, the issue of entitlement to a higher rating for PTSD prior to that date remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issues of entitlement to an initial rating in excess of 50 percent for PTSD prior to February 13, 2013, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The increase in the pre-existing retinitis pigmentosa during active service was due to the natural progress of the disease. CONCLUSION OF LAW Retinitis pigmentosa was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a December 2005 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter predated the initial adjudication by the RO in July 2006. In a December 2012 letter, he was again notified of the criteria for establishing service connection and how VA determines disability ratings and effective dates if service connection is awarded. The claim was thereafter readjudicated in a May 2013 supplemental statement of the case (SSOC). Accordingly, 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 him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment and personnel records, as well as post-service reports of VA and private treatment and examination. The Veteran's 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 claim. VA provided the Veteran with an examination in February 2013 to determine the nature and etiology of his disability. 38 C.F.R. § 3.159(c)(4) (West 2002 & Supp. 2012). When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination report, along with the addendum, to be thorough and adequate upon which to base a decision on the claim. A brief but relevant and important opinion was provided. The Board finds the opinion to be adequate, as it was based on a full reading of the claims file as well as the Veteran's own pertinent statements. Accordingly, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis 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. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2012). The medical evidence of record shows that the Veteran has been diagnosed with retinitis pigmentosa. [Retinitis pigmentosa is defined as a group of diseases, frequently hereditary, marked by progressive loss of retinal response. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1658 (31st ed. 2007).] Thus, this disorder is, by its nature, deemed to have pre-existed his service. See VAOPGCPREC 82-90 (July 18, 1990) (stipulating, in a precedent opinion, that a disease which is considered by medical authorities to be of familial (or hereditary) origin must, by its very nature, be found to have pre-existed a claimant's military service.) Service connection may still be granted for such a pre-existing hereditary disease if manifestations of the disorder in service are found to constitute aggravation of the condition. Id. In this regard, the Board notes that a preexisting disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a), (b) (2012). Congenital or developmental defects, however, are not diseases or injuries within the meaning of VA laws, and service connection for such is not warranted. 38 C.F.R. § 3.303(c). Generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease. VAOPGCPREC 82-90 (July 18, 1990). Here, the Veteran's service treatment records show that, during his September 1966 entrance examination, he was found to have defective vision bilaterally, diagnosed as mixed astigmatism with refractive amblyopia. In September 1967, he apparently complained of difficulty seeing at night and was diagnosed with possible night blindness. A December 1967 examination revealed that he had retinitis pigmentosa. In January 1968, he reported a history of decreased night vision since age 12. A subsequent Medical Board Report reflects that the Veteran had retinitis pigmentosa that existed prior to entry into service and was not incurred in or aggravated by service. As indicated above, post-service medical records continue to show a diagnosis of retinitis pigmentosa. As the record did not contain competent evidence addressing the matter of whether the Veteran's retinitis pigmentosa was aggravated beyond its natural progression during his active duty, the Board requested a VA examination to obtain an opinion on the matter. At a February 2013 VA examination, the Veteran reported a history of having excellent vision prior to enlisting in service and having difficulty seeing in the dark while in the Republic of Vietnam. He stated that he was diagnosed with retinitis pigmentosa and shipped home. He reported registering with the state commission for the blind in 1977 and driving until the 1990s. After examining the Veteran, the examiner confirmed the diagnosis of retinitis pigmentosa. In an addendum, the optometrist who was consulted by the above examiner stated that retinitis pigmentosa is a hereditary disease. After reviewing the claims file, the optometrist stated that it is more likely than not that the Veteran's condition increased in severity during service as a natural manifestation of the natural history of this endogenous condition. The optometrist noted that it is very common for retinitis pigmentosa to become clinically manifest among young adults and that it would be expected that a person with retinitis pigmentosa may be functionally normal to his compatriots during youth but may become manifestly symptomatic, especially for night vision, as a young adult. The optometrist then stated that it is more likely than not that the natural history of this condition has become manifest for the Veteran in the way that it has as a natural expression of the structural changes brought about by this hereditary disease. The optometrist then opined that it is less likely than not that the Veteran's permanent increase in disease manifestation severity is attributable to service. Given the above, the VA examiner opined that the Veteran's retinitis pigmentosa increased in severity during service but that the increase was due to the natural progress of the disease, and not attributable to service. Thus, the Board finds that the increase in the pre-existing retinitis pigmentosa during active service was due to the natural progress of the disease. Accordingly, the Board concludes that the Veteran's pre-existing retinitis pigmentosa was not aggravated by active service. The Board notes the statements from the Veteran's friends indicating that he had no problems seeing at night prior to service. The Board also notes the statement from the serviceman who trained with the Veteran prior to his departure to the Republic of Vietnam indicating that the Veteran had no problems seeing at night. However, the VA examiner noted that a person with retinitis pigmentosa may be functionally normal to his compatriots during youth but may become manifestly symptomatic, especially for night vision, as a young adult. That appears to have been the case with this Veteran. Thus, the above lay statements are of little probative value in determining whether the Veteran's retinitis pigmentosa was aggravated by service. See Hayes v. Brown, 5 Vet. App. 60 (1993). A lay person is competent to give evidence about observable symptoms such as decreased hearing. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is also competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the question of aggravation extends beyond an immediately observable cause-and-effect relationship. The Veteran, as a lay person, is not competent to address the question of aggravation. Also, as discussed herein, the medical evidence shows that the Veteran's retinitis pigmentosa was not aggravated by his active service. Lastly, the Board notes the assertion by the Veteran's representative in the August 2013 statement that service connection for retinitis pigmentosa should be granted based on the presumption of soundness. The representative asserted that there is no medical evidence that the Veteran's retinitis pigmentosa manifested prior to service. However, as discussed above, retinitis pigmentosa is, by nature, a hereditary disease and thus pre-existed service. The question in this case was whether the disease was aggravated by service and the medical evidence shows that it was not. In conclusion, service connection for retinitis pigmentosa is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for retinitis pigmentosa is denied. REMAND In the remand portion of the November 2012 decision, the Board in part requested that VA medical records dated since January 2006 be obtained and that the Veteran be scheduled for a VA examination to evaluate his PTSD. The Board requested the VA medical records based on an April 2012 statement from two VA clinicians who were treating the Veteran for his PTSD. Although the AMC afforded the Veteran an examination in February 2013, the AMC did not obtain the Veteran's VA medical records. Based on the providers' names, the Board observes that the Veteran was being treated at the Causeway Community Based Outpatient Center (CBOC), part of the Jamaica Plain VA Medical Center (VAMC). Thus, all treatment notes from the above facilities since January 2006 should be obtained, in compliance with the November 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998). As noted in the introduction, the AMC increased the rating for PTSD to 100 percent effective February 13, 2013. Thus, although the issue of entitlement to a higher rating for PTSD since February 13, 2013, is moot, the issue of entitlement to a higher rating for PTSD prior to that date remains in appellate status. However, the AMC did not readjudicate that portion of the Veteran's PTSD claim that remains on appeal. See May 2013 SSOC. Thus, the AMC must readjudicate that issue, in compliance with the November 2012 remand. The Board acknowledges that the Veteran has carried a 100 percent schedular disability rating for PTSD since February 13, 2013. However, the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is potentially not moot even when a schedular 100 percent disability rating has been granted. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). See 38 U.S.C.A. § 1114(s) (West 2002 & Supp. 2012). Thus, the issue of entitlement to a TDIU for the entirety of the appellate period remains before the Board. In the May 2013 SSOC, the AMC only readjudicated the issue of entitlement to a TDIU prior to February 13, 2013. As noted above, the entire rating period should be considered. Moreover, as the remand of the claim for a higher rating for PTSD prior to February 13, 2013, could affect the claim for a TDIU, the Board finds that the claims are inextricably intertwined and a Board decision on the latter claim at this time would be premature. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain all records of treatment from the Jamaica Plain VAMC, including the Causeway CBOC, since January 2006. All such available records should be associated with the Veteran's claims folder. 2. Then, readjudicate the claims for an initial rating in excess of 50 percent for PTSD prior to February 13, 2013, and entitlement to a TDIU. Specific to the TDIU claim, readjudication should include consideration of all the Veteran's service-connected disabilities and the entirety of the appellate period. If the decision is adverse to the Veteran, issue an SSOC and allow the appropriate time for response. Then, return the claims to the Board. The Veteran has the right to submit additional evidence and argument on the 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 remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs