Citation Nr: 1333844 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-03 172 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral eye disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1969. This case was previously before the Board of Veterans' Appeals (Board) in December 2009, May 2011, and December 2012. Each time, it was remanded for further development. The claim is now ready for appellate review. FINDINGS OF FACT 1. The Veteran's bilateral eye disorder, diagnosed primarily as retinitis pigmentosa, was clearly and unmistakably first manifested prior to service. 2. The Veteran's retinitis pigmentosa clearly and unmistakably underwent no inservice increase in pathology beyond its natural progression. CONCLUSIONS OF LAW 1. With respect to bilateral retinitis pigmentosa, the criteria have been met to rebut the presumption that the Veteran's eyes were in sound condition at the time he entered service. 38 U.S.C.A. §§ 1111, 5103, 5103A (West 2002 and Supp. 2013); 38C.F.R. §§ 3.159, 3.304(b) (2013). 2. The criteria for the establishment of service connection for a bilateral eye disorder, retinitis pigmentosa are not met or approximated. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.306(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for an eye disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In October 2005, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, the VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. The VA also informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his VA treatment from April 1980 through February 2012; records reflecting his treatment at the University of Kansas Medical Center from October 1979 through October 2009; and information showing that his Social Security records had been destroyed. In August 1983, August 2010, April 2013, VA examined the Veteran to determine the nature and etiology of any eye disorder found to be present. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his eye disorders, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. The examinations in whole are factually informed, medically competent and responsive to the Board's inquiry and are adequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). During the course of the appeal, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined to accept that offer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, the evidence must show (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. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Every veteran is taken to have been 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). VA bears the burden of proof to rebut the presumption. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). 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). Generally, congenital or developmental defects and refractive error of the eye, as such, are not diseases or injuries within the meaning of VA law and regulations. 38 C.F.R. § 3.303(c). However, diseases of hereditary origin can be incurred or aggravated in service, in the sense contemplated by Congress in title 38. They can be considered to be incurred in service if their symptomatology did not manifest itself until after entry on duty. The mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease. Only when symptomatology and/or pathology exist can he or she be said to have developed the disease. Even where an hereditary disease has manifested some symptoms prior to entry on duty, it may be found to have been aggravated during service if it progresses during service at a greater rate than normally expected according to accepted medical authority. VAOPGCPREC 67-90. Service-connection may be granted for diseases of congenital, developmental or familial origin. Service connection is warranted if the evidence as a whole establishes that the familial condition in question were incurred or aggravated during service within the meaning of VA law and regulations. VAOPGCPREC 82-90. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he is blind due to an eye disorder which started in service. He states that he had full vision capabilities when he was inducted into the service and that he was separated from the service for a visual defect which disqualified him from service. He concedes that at the time of his entry in service, his visual acuity was 20/400, bilaterally, corrected to 20/40 bilaterally. However, he notes that at the time of his separation from the service, his uncorrected visual acuity had deteriorated to 20/400+, bilaterally, and that the corrected visual acuity in his left eye had deteriorated to 20/50, as the result of weapons training and other training in service. After carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. The Veteran is competent to testify about what he experienced prior to, during, and since the conclusion of his service. For example, he is competent to report that he was having difficulty seeing clearly. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. In this case, a diagnosis of an eye disorder and the causes of its aggravation are beyond the knowledge of a layman, and there is no evidence on file that the Veteran has the training or experience to diagnose an eye disorder or express an opinion as to the causes of its worsening, such as retinitis pigmentosa. Jandreau. Similarly, he does not have the training or experience to determine the natural progress of such a disorder. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. The Board is obligated to weigh the evidence and decide where to give or withhold credit, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). 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. 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 regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). A pre-induction examination in March 1968 shows his bilateral uncorrected vision was 20/400, correctable to 20/40. The examiner assigned the Veteran a physical PULHES profile of 2 for his eyes. Then, as now, the number 2 indicates that the Veteran possessed some medical condition or physical defect which could impose some limitations on his military classification and assignment. Army Regulation 4-501; McIntosh v. Brown, 4 Vet. App. 553, 555 (1993); see also Odiorne v. Principi, 3 Vet.App. 456 (1992)((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). In September 1968, the Veteran's uncorrected bilateral visual acuity was 20/200, correctable to 20/60, bilaterally. A January 1969 service treatment record shows a change in the Veteran's visual acuity with his corrected vision in his left eye being 20/50. The record indicated he had binocular amblyopia due to high astigmatism. He underwent further evaluation in February 1969, and it was determined his vision was barely within the E-3 profile and that he did not meet the standards for induction. AR 40-501. Thereafter, his induction was voided, and he was separated from the service due to his visual impairment. Notably, on the separation examination, his uncorrected bilateral distant vision was 20/400+ and his corrected vision was 20/40 in the right eye and 20/50 in the left eye. The diagnosis was mixed myopic astigmatism. During December 1979 and January 1980, the Veteran was evaluated by the Ophthalmology Service at the University of Kansas Medical Center. Following extensive clinical examination, workup, the Veteran was diagnosed with bilateral retinitis pigmentosa, bilateral congenital cataracts, and bilateral high astigmatism with ametropia. The following month, the treating physician reported that the Veteran met the federal government's requirements to be considered legally blind. The physician stated that there was no hope for visual restoration and that the visual loss was expected to progress to total blindness. Extensive VA treatment records, dated from April 1986 to February 2012 and the reports of the Veteran's VA examinations in August 1983, August 2010, and April 2013 confirm the diagnoses. During the August 1983 VA examination, it was noted that the Veteran had all the characteristic findings of retinitis pigmentosa: narrowed arterioles, disc pallor, mid-periphery pigment clumping, loss of foveal reflex, very narrow visual fields, and central cataracts. The VA examiner also noted that since the Veteran's diagnosis of retinitis pigmentosa, he had notice a continued deterioration in his central visual acuity, as well as a loss of side vision. During the August 2010 VA examination, it was noted that the Veteran had a history of retinitis pigmentosa which had left him with no light perception, bilaterally. He reported that he had a strong family history of retinitis pigmentosa and that he had been diagnosed with that disorder prior to the service. Following the examination, the VA examiner confirmed that the Veteran's lack of light perception was due to retinitis pigmentosa. He stated that the Veteran was born with a genetic problems and that he was predisposed to eventually lose his vision. Based on the clinical evidence and the history, genetics, and natural progression of retinitis pigmentosa, the examiner concluded that it was less likely than not that the Veteran's time in service caused or contributed to the development of that disorder. In April 2013, the Veteran was examined by a different VA examiner. Following the examination, he found that the Veteran's bilateral retinitis pigmentosa had resulted in no light perception in either eye. He also noted that the Veteran had dry eyes, bilaterally, and diabetes mellitus with diabetic retinopathy. In June 2013, after reviewing the Veteran's claims file, the examiner noted the Veteran's report of retinitis pigmentosa in 1969 and that his mother and younger brother had the disease. The examiner stated that retinitis pigmentosa was a genetic disease that progressed to loss of vision, and that the Veteran had been born with the disease and that was predisposed to lose his vision over time. Therefore, the VA examiner concluded that the Veteran's retinitis pigmentosa had not been aggravated in service beyond its natural progression. After reviewing the record, the initial question is whether the Veteran's eyes were in sound condition at the time he entered service. Clearly, they were not. Not only did he demonstrate impaired visual acuity of 20/400, bilaterally, the post-service medical records show that visual impairment represented the initial manifestations of retinitis pigmentosa. The Veteran acknowledged that he had had that diagnosis prior to his entry on active duty, and the medical records confirm that he was genetically predisposed to that disorder. There is no competent evidence to the contrary, and therefore, the Board finds that the Veteran's retinitis pigmentosa clearly and unmistakably existed prior to service. The next question is whether the Veteran's retinitis pigmentosa was aggravated by service. There is no competent evidence to confirm the Veteran's contentions that the deterioration of his visual acuity was due to training, such as weapons firing, or any injury, disease, or other event in service. Multiple post service health care providers and examiners, both VA and private, agree that deteriorating visual acuity and, ultimately, blindness constitute the natural progress of retinitis pigmentosa. Again, there is no competent evidence to the contrary. For the foregoing reasons, the Board finds no nexus between the Veteran's bilateral eye disorder and service. Absent such a nexus, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a bilateral eye disorder is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the evidence is clearly and unmistakably against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for an eye disorder is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs