Citation Nr: 1342367 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 09-32 457 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for chorioretinitis, claimed as tunnel vision. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to October 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2004 RO rating decision, for which the Veteran timely perfected an appeal. In an August 2009 substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals), the Veteran requested a Board hearing at the RO. In April 2011, the Veteran withdrew the request in writing. See 38 C.F.R. § 20.704 (e) (2013). The paperless, electronic Virtual VA and Veteran Benefits Management Systems do not contain evidence relevant to this appeal in addition to that reflected in the paper claims file. FINDING OF FACT Competent, credible, and probative evidence indicates that the Veteran's chorioretinitis, claimed as tunnel vision, was, as likely as not, caused by a parasitic infection in active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor , the criteria for service connection for chorioretinitis are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 and 3.326(a) (2013). In this case, as the Board is granting the claim for service connection, the claim is substantiated, and there are no further requirements for notice and assistance. See Wensch v. Principi, 15 Vet App 362, 367-68 (2001). Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As a preliminary matter, the Board will address whether the current claim on appeal for service connection for chorioretinitis is an original claim or a request to reopen a finally disallowed claim. The Veteran perfected an appeal of the November 2004 denial of service connection for chorioretinitis in May 2005. On the same day in February 2008, the same Veteran's Service Representative submitted two written statements. One indicated that the Veteran withdrew his appeal the previous day, and the second indicated that the Veteran desired to reopen the claim. No reasons for the near simultaneous withdrawal and reopening were provided in the statements. These statements taken in time sequence negatively alter a possible effective date and the criteria necessary to substantiate the benefit sought. The Board finds that the intent of the Veteran was to continue the appeal and that the representative's statements were in error and served only to prejudice and not to assist the Veteran. Therefore, resolving all doubt in favor of the Veteran, the Board concludes that the appeal of the November 2004 denial of service connection for chorioretinitis was not withdrawn, and that the decision was not final. Therefore, new and material evidence is not required, and the Board will adjudicate the claim on a de novo basis, considering all evidence of record. The Veteran served as a U.S. Army communications analyst with two tours of duty in the Republic of Vietnam. He contended in a November 2003 claim and during a July 2010 RO hearing that his chorioretinitis of both eyes was caused by a virus or infection acquired in service in Vietnam. Service personnel records show that the Veteran's military occupation and unit assignment during his tours of duty in Vietnam are consistent with radio intercept operations in the field. Service treatment records are silent for any symptoms of the eyes other than refractive correction. There were no reports of acute symptoms or reduced visual acuity by the Veteran or treatment for infections, foreign bodies, or chemical exposure. In January 2004, a private ophthalmologist noted the Veteran's reports of a gradual deterioration of his vision over the past twenty years. The ophthalmologist noted a reduction of the field of vision below the minimum required to operate an automobile and diagnosed retinitis pigmentosa. In a February 2004 letter, a private optometrist ruled out that diagnosis because it is a generally a genetic disease and the Veteran had no pertinent family history. He noted that there was no clear etiology for the loss of field of vision. In a November 2005 letter, another private optometrist concluded that the disorder was better diagnosed as chorioretinitis, which would indicate that a chemical or microbial agent was the cause of an inflection or inflammation of the eye. The Veteran was referred to an ophthalmologist at a university eye center. In a November 2005 letter, a University Professor of Ophthalmology noted the Veteran's report of a gradual loss of field of vision since the late 1970s. After performing detailed testing and examination, the professor concluded that the disorder was best diagnosed as chorioretinitis because of asymmetry and lack of family history. He noted, "It very well may be that the cause are (sic) parasites caught in the field during his Vietnam tours, and the condition is consistent with that possibility." The professor re-dated the same letter in September 2009 and August 2010. In September 2010, the professor deleted the sentence and substituted the following: "It is at least as likely as not that the cause are (sic) parasites caught in the field during his vietnam tours, and the condition is consistent with that possibility." The Board finds that service connection for chorioretinitis of both eyes is warranted. The record contains competent medical evidence of a diagnosis of chorioretinitis and service record evidence of service in a jungle environment. The Board finds that the Veteran is competent and credible in his reports of the onset of a gradual onset of a reduction of field of vision starting in the late 1970s or 1980s. Finally, based on the Veteran's credible reports of jungle service and the onset of symptoms, the professor provided a competent, probative, and unconditional opinion that the cause of the gradual retinal degradation was likely a parasitic infection incurred during the Vietnam tours of duty. The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). In this case, the Board finds that the professor's September 2010 opinion should be accorded great probative weight. Significantly, there is and there is no contrary opinion of record. [The Veteran failed to report for a VA eye examination in March 2007, but there is no evidence that another examination was scheduled. The file does show that the Veteran received regular VA outpatient care since 2006.] The Board acknowledges that the professor did not review the service records. However, that fact, alone, does not diminish the probative value of his opinion. The actual records, which do not document that the Veteran experienced or was treated for acute symptoms in service, are not inconsistent with the Veteran's report of the onset of degraded vision after service without mention of earlier acute symptoms. There is no documented evidence of the Veteran's exposure to parasites or viruses; however, such is consistent with a jungle environment, and the professor found it to be a likely cause for the gradual and delayed onset of retinal degeneration. Moreover, while the professor's opinion is not definitive, it was expressed in terms sufficient to warrant application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the totality of the evidence-to include to include credible lay assertions and supporting opinion evidence- and resolving all reasonable doubt on the service incurrence and medical nexus questions in the Veteran's favor, the Board finds that the criteria for service connection for chorioretinitis are met. ORDER Service connection for chorioretinitis is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs