Citation Nr: 1513084 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 13-00 434A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Whether new and material evidence has been received to reopen a claim for service connection for retinitis pigmentosa. 2. Entitlement to service connection for retinitis pigmentosa. REPRESENTATION Appellant represented by: Robert McClelland, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1961 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Louisville, Kentucky Regional Office (RO) of the Department of Veterans' Affairs (VA). In February 2015, a Board video-conference hearing was held before the undersigned; a transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An unappealed March 1977 rating decision denied service connection for retinitis pigmentosa based on a finding that it was a hereditary condition not aggravated by service. 2. An unappealed January 2008 rating decision again denied service connection for retinitis pigmentosa. 3. Evidence received since the January 2008 rating decision relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 4. Although the Veteran was shown to have some level of diminished visual acuity upon entrance into service in December 1961, he was found to meet the minimum training standards with use of his present glasses and was not diagnosed with retinitis pigmentosa until October 1963. 5. The Veteran's current retinitis pigmentosa is shown to have been manifest during service and is not shown to have clearly and unmistakably pre-existed service. CONCLUSIONS OF LAW 1. The January 2008 decision is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1100 (2014). 2. New and material evidence has been received with respect to the Veteran's claim for service connection for retinitis pigmentosa; the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 3. The criteria for service connection for retinitis pigmentosa have been met. 38 U.S.C.A. §§ 1110, 1111 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. The Veteran's initial claim for service connection was denied by a March 1977 rating decision, which found that his retinitis pigmentosa was a hereditary condition (and thus pre-existed service) and that it was not aggravated by service. The Veteran did not appeal; therefore, the March 1977 rating decision became final. 38 U.S.C.A. § 7105. The RO again denied the Veteran's claim in a January 2008 rating decision. He submitted a notice of disagreement, and the RO issued a statement of the case in October 2008; however, the Veteran did submit a substantive appeal. Accordingly, the January 2008 rating decision became final. 38 U.S.C.A. § 7105. In order to reopen his claim, new and material evidence must be received. 38 U.S.C.A. § 5108. In February 2015 hearing testimony, the Veteran testified that he had not been diagnosed with retinitis pigmentosa prior to December 1963, at the time he was separating from service. The Veteran also testified that he did not have any significant visual problems before he entered service. He noted that while he was growing up, he was able to participate in the same activities in which everyone else participated. This testimony is new, as these specific assertions concerning the timing of the Veteran's vision problems and retinitis pigmentosa diagnosis had not been specifically advanced by him. It also relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim as it tends to indicate that retinitis pigmentosa was first shown during service, rather than before service. Accordingly, as the Veteran's testimony is presumed credible at this stage (See Justus v. Principi, 3 Vet. App. 510, 513 (1992)), new and material evidence has been received and the claim for service connection for retinitis pigmentosa may be reopened. 38 C.F.R. § 3.156. The Veteran's service treatment records show that at entrance into service it was noted that the Veteran did have some level of visual impairment but that he met the minimum training standards with his present glasses. Thus, two pair of these glasses were ordered. Subsequently, in October 1963, the Veteran was noted to have performed the night vision test very poorly, indicating a significant degree of night blindness. Retinitis pigmentosa was noted as the likely diagnosis and the examining medical clinician felt that the condition had existed prior to entry into service. A subsequent October 1963 progress note indicates that the Veteran reported that his vision had been decreasing since age 15, particularly his night vision and peripheral vision. At a September 2012 VA examination, the examiner noted that retinitis pigmentosa is a genetic condition that begins at birth and results in a gradual progressive visual decline. The examiner indicated that the Veteran seemed to have noticed visual decreases during his tour in Germany when he was spending nights out in the field on cooking/kitchen duty. The examiner also noted that ophthalmic examination in 1963 provided clear documentation of early retinitis pigmentosa fundus changes. The examiner opined that the Veteran's retinitis pigmentosa clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner commented that to his knowledge, there was no existing evidence that retinitis pigmentosa can be aggravated, exacerbated or worsened by eye usage such as was described by the Veteran. Unfortunately, retinitis pigmentosa was progressive and untreatable in all but a few extremely rare cases associated with particular forms of the disease, which did not seem to be present in the Veteran. In a July 1990 precedential opinon, VA's general counsel determined that "retinitis pigmentosa and most other diseases of hereditary origin can be incurred or aggravated in service" for purposes of awarding service connection. "The mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition in his or her lifetime, does not constitute having the disease. . . . At what point the individual starts to manifest the symptoms of, or have pathological changes associated with the disease is a factual, not a legal issue. This must be determined in each case based on all the medical evidence of record." VAOPGCPREC 67-90 (July 18, 1990). The Veteran was not noted to have retinitis pigmentosa during his entrance examination. Thus, he must considered sound on entry for purposes of his claim for service connection for this disease. 38 C.F.R. § 3.304(b). This presumption may only be rebutted if there is clear and unmistakable (i.e. undebatable) evidence that the disease actually did pre-exist service and was not aggravated by service. Id. The evidence shows an initial diagnosis of retinitis pigmentosa during service, in October 1963 and that the Veteran has continued to suffer from this disease ever since. The September 2012 VA examiner's opinion does tend to indicate that the retinitis pigmentosa pre-existed service and was not aggravated by service. However, the examiner did not specifically find that the Veteran exhibited symptoms identifiable as retinitis pigmentosa prior to or upon entry into service. Instead, he simply indicated that the disease begins at birth, is usually not noticed early on in its course, becomes more apparent later when patients have decreases in their visual fields, visual acuity and night blindness, and that the ophthalmic evaluation in 1963 provided clear documentation of the early fundus changes of retinitis pigmentosa. Similarly, the Veteran's October 1963 report that he noticed a decrease in vision since age 15, particularly his night vision, also constitutes evidence tending to indicate that retinitis pigmentosa may have pre-existed military service. Additionally, the October 1963 notation in the service treatment records that the disease did pre-exist service also supports a finding that retinitis pigmentosa pre-existed service. Nonetheless, when considered in conjunction with the July 1990 General Counsel opinion (indicating that for purposes of awarding service connection, retinitis pigmentosa and other genetic diseases can be found to have been incurred in service), the above evidence does not clearly and unmistakably (i.e. undebatably) indicate that the Veteran's retinitis pigmentosa pre-existed service. Although the VA examiner did conclude that retinitis pigmentosa clearly and unmistakably pre-existed service, the only specific rationale he provided for this conclusion was the genetic nature of the disease. However, in the context of a claim for service connection, this observation does not undebatably indicate that the disease pre-existed service as the General Counsel opinion still allows for finding that a genetic disease was incurred in service if the disease symptomatology is not shown to have become manifest until after entry into active duty. VAOPGCPREC 67-90 (July 18, 1990). Also, as the October 1963 notation that the disease did pre-exist service was not supported by any specific explanation, it does not undebatably show such pre-existence. Additionally, the Veteran's report in October 1963 that he had had visual changes since the age of 15 does not undebatably indicate that these reported visual changes were manifestations of retinitis pigmentosa. In sum, the earliest diagnosis of record of this disease is still from October 1963, nearly two years after the Veteran's entry into service, and the only evidence of the presence of specific pre-service retinitis pigmentosa sympotmatology is the Veteran's October 1963 report of visual decline since age 15. Although this report supports a finding that retinitis pigmentosa pre-existed service, it does not clearly and unmistakably demonstrate it. Thus, the presumption of soundness is not rebutted and the Board must conclude that the current retinitis pigmentosa first became manifest during service. 38 C.F.R. § 3.304(b). Accordingly, service connection for the disease is warranted. 38 C.F.R. § 3.303. ORDER Service connection for retinitis pigmentosa is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs