Citation Nr: 1813919 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 14-02 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether the Agency of Original Jurisdiction committed clear and unmistakable error in a June 1988 rating decision that denied service connection for retinitis pigmentosa. 2. Entitlement to a rating in excess of 70 percent prior to December 10, 2008, and in excess of 90 percent as of December 10, 2008, for retinitis pigmentosa. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from November 1984 to February 1988. In August 2010, the Board of Veterans' Appeals (Board) granted service connection for retinitis pigmentosa. This matter comes before the Board on appeal from an August 2010 rating decision of the New Orleans, Louisiana, Regional Office of the Department of Veterans Affairs (VA) which established service connection for retinitis pigmentosa and assigned a 60 percent rating from October 13, 2004, to April 14, 2009, and a 70 percent rating as of April 15, 2009. In September 2010, the Agency of Original Jurisdiction determined that the June 1988 rating decision denying service connection for retinitis pigmentosa was not clearly and mistakably erroneous. In April 2011, the Agency of Original Jurisdiction denied a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). In July 2014, the North Little Rock, Arkansas, Regional Office (RO) increased the rating to 70 percent from October 13, 2004, to December 10, 2008, and to 90 percent as of December 10, 2008, for retinitis pigmentosa. In February 2016, the Board determined that the June 1988 rating decision denying service connection for retinitis pigmentosa was not clearly and mistakably erroneous and remanded the issues of entitlement to an increased rating for a service-connected eye disability and TDIU to the Agency of Original Jurisdiction for additional development. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In November 2016, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand; vacated that portion of the February 2016 Board decision which determined that the June 1988 rating decision denying service connection for retinitis pigmentosa was not clearly and mistakably erroneous; and remanded the Veteran's claim to the Board for action consistent with the Joint Motion for Partial Remand. In February 2018, the Agency of Original Jurisdiction granted TDIU, effective October 13, 2004, which is a full grant of the benefit sought and that claim is no longer before the Board. FINDINGS OF FACT 1. A June 1988 rating decision denied service connection for retinitis pigmentosa. The Veteran did not submit a timely notice of disagreement and the June 1988 rating decision is final. 2. The evidence of record at the time of the June 1988 rating decision shows that retinitis pigmentosa was not documented in the report of the August 1984 physical examination for service entrance; was a hereditary/familial disability; and increased in severity during active service. CONCLUSION OF LAW The June 1988 rating decision denying service connection for retinitis pigmentosa was clearly and unmistakably erroneous. 38 U.S.C §§ 311, 331, 337 (1987); 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.304 (1987); 38 C.F.R. § 3.105(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that the June 1988 rating decision denying service connection for retinitis pigmentosa was clearly and unmistakable erroneous as the evidence then of record established that retinitis pigmentosa was not found at his physical examination for service entrance and increased in severity during active service to such a point as to necessitate separation from active service. Generally, appellate review is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished. Absent such action, a rating determination is considered to be final and is not subject to review except upon a finding of clear and unmistakable error. 38 U.S.C. § 7105 (2012). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a) (2017). A determination that there is clear and unmistakable error in a prior Agency of Original Jurisdiction rating decision must be based on the record and the law as it existed at the time of the challenged prior adjudication. Clear and unmistakable error is present when either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied and the error is undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992); Norris v. West, 12 Vet. App. 413 (1999). The June 1988 rating decision denied service connection for retinitis pigmentosa as "retinitis pigmentosa is a constitutional or developmental abnormality and no aggravation by military service is shown." The Veteran was informed of the adverse decision and his appellate rights in June 1988. The Veteran did not submit a timely notice of disagreement and the June 1988 rating decision is final. In 1988 and at the present time, service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 331 (1987). Retinitis pigmentosa is a "group of diseases, frequently hereditary, marked by progressive loss of retinal response ... retinal atrophy, attenuation of the retinal vessels, and clumping of the pigment, with contraction of the field of vision." Dorland's Illustrated Medical Dictionary 1634 (32nd ed., 2012). In March 1985, the VA General Counsel directed that service-connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole established that the condition in question was incurred or aggravated during service within the meaning of VA law and regulations. The VA General Counsel clarified that VA adjudicators "ordinarily are justified in finding that [a congenital, developmental, or familial in origin] disease, by its very nature, preexisted the Veteran's service." Op. G.C. 1-85 (reissued as VAOPGCPREC 82-90). In 1988 and at the present time, a Veteran who served after December 31, 1946, is presumed to be 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 (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 311, 337 (1987); 38 C.F.R. § 3.304 (1987). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. If that burden is met, then the Veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness, the claim is one for service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The report of the August 1984 physical examination for service entrance does not state that retinitis pigmentosa was diagnosed or otherwise identified. The report indicates that while "pigmentation - area of macula" was found, contemporaneous eye evaluation found "no progressive eye disease." The identified eye abnormality was "not considered disabling" and the Veteran was determined to be qualified for active service. As retinitis pigmentosa was not identified in the August 1984 report of physical examination for service entrance, the presumption of soundness with regard to retinitis pigmentosa attaches. 38 U.S.C. § 311 (1987); 38 C.F.R. § 3.304 (1987). A September 1987 Army physical evaluation states that: the Veteran exhibited bilateral 20/40 visual acuity on examination in August 1984. He performed well during active service and was promoted to SP4. He exhibited bilateral "visual acuity with correction of 20/50" on current examination. The examiner concluded that the Veteran was "unfit for retention in the military service." The doctor commented that the retinitis pigmentosa "existed prior to his active duty service and was not exacerbated by his service in the Army." The doctor did not indicate whether the worsening of the bilateral visual acuity was due to the normal progression of retinitis pigmentosa. A September 1987 Medical Evaluation Board Proceedings report states that the retinitis pigmentosa originated in approximately 1984, made the Veteran to be "not qualified for duty," and had not been "permanently aggravated by service." The record then before the Agency of Original Jurisdiction establishes that the Veteran was diagnosed with retinitis pigmentosa, a hereditary/familial disability which may be considered to have preexisted active service by its very nature. The preexisting retinitis pigmentosa was asymptomatic at the August 1984 physical examination for service entrance. The Veteran served meritoriously for over three years and was promoted, but retinitis pigmentosa increased in severity to such a point by September 1987 that the Veteran was unfit for duty and separated from active service. The Board notes that the record then before the Agency of Original Jurisdiction is devoid of clear and unmistakable evidence showing that retinitis pigmentosa had both preexisted service entrance and was not aggravated by active service. Therefore, the Board finds that the presumption of soundness as to retinitis pigmentosa has not been rebutted. Accordingly, the Board finds that the Agency of Original Jurisdiction undebatably applied the law extant at the time incorrectly in denying service connection for retinitis pigmentosa and that error, had it not been made, would have manifestly changed the outcome of the decision on the claim. Therefore, the Board concludes that the Agency of Original Jurisdiction committed clear and unmistakable error in a June 1988 rating decision denying service connection for retinitis pigmentosa. ORDER As the June 1988 rating decision was clearly and unmistakably erroneous in denying service connection for retinitis pigmentosa, the decision is reversed and service connection for retinitis pigmentosa is granted. REMAND The Veteran asserts that the record supports a higher initial rating for retinitis pigmentosa. The Board notes that this decision has found clear and unmistakable error in a previous denial of service connection which should result in an extended period of initial service connection for which a rating has not been assigned. The Veteran was last provided a VA eye examination in October 2013. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because of the passage of over four years since the last VA eye examination, the Board finds that further VA ophthalmological evaluation is needed to accurately determine the current nature and severity of the service-connected retinitis pigmentosa. Clinical documentation dated after March 2014 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of the retinitis pigmentosa after March 2014, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records for examination and treatment not already of record, to include that provided after March 2014. 3. Schedule the Veteran for a VA ophthalmological examination. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide visual acuity findings for both eyes. The examiner should specifically state whether or not the Veteran has no more than light perception only for either eye. 4. Then readjudicate the claim on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then return the case 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 that are 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. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs