Citation Nr: 21002574 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-35 546 DATE: January 14, 2021 ORDER Entitlement to service connection for retinitis pigmentosa is denied. FINDING OF FACT The Veteran’s retinitis pigmentosa clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for retinitis pigmentosa have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to July 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that this matter has a lengthy procedural history. However, as determined by the Board in April 2011, entitlement to service connection for retinitis pigmentosa is a separate claim from his previously denied eye disability claims. In April 2011, this matter was remanded by the Board for development. In April 2016, the Veteran’s attorney expressed concern that the remand directives had not been completed. However, in an earlier September 2018 decision, the Board determined that as instructed by the Board, the RO provided the Veteran a notice letter in October 2011; that VA records from the Blind Rehabilitation Center at the Palo Alto VA are of record; that in November 2011, the RO received a response from St. Helena Hospital that records pertaining to the Veteran had been destroyed; and that in April 2012, an examination was obtained and in May and September 2012, opinions were obtained that are adequate upon which to base a determination. Thus, the Board found that there was substantial compliance with its April 2011 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) In the September 2018 decision, the Board denied the instant appeal. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a May 2020 Memorandum Decision, the Court vacated the Board’s September 2018 decision and remanded the matter back to the Board for action consistent with the Memorandum Decision. Entitlement to service connection for retinitis pigmentosa. The Veteran seeks service connection for retinitis pigmentosa. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed inservice disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Generally, congenital and hereditary disabilities are not deemed diseases or injuries for VA purposes but, under certain circumstances, service connection may be granted for such disorders if they are shown to have been aggravated during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In a precedential opinion, VA’s General Counsel indicated that, for service connection purposes, there is a distinction under the law between a congenital or developmental “disease” and a congenital “defect.” Congenital diseases may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. For VA purposes, a congenital defect is a static disability, whereas a congenital disease is capable of improving or deteriorating. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In addition, service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90. As such, the Veteran’s retinitis pigmentosa is a disease under VA regulations and may be subject to service connection. The Board notes that retinitis pigmentosa was not noted at service entrance. The Veteran’s August 1964 report of medical examination at induction indicated that his eyes were normal on clinical evaluation. His vision was 20/400 in the right eye, correctable to 20/40. His vision was 20/400 in the left eye, correctable to 20/50. It was noted on his report of medical history that he wore glasses. Thus, he is presumed sound at entrance. To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). As will be discussed below, the Board finds that retinitis pigmentosa clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated during service. 38 U.S.C. § 1111. Service treatment records show that the Veteran did have problems with his vision during service. At a May 1965 ophthalmology visit, it was noted that the Veteran had retinal degeneration, familial, with uncorrectable visual acuity impairment. The Veteran specifically reported that he had had similar problems for many years and that his sister had a severe visual defect. He was noted to have poor night vision and poor color vision noted on entry. A May 1965 eye clinic note indicates that the Veteran’s visual problems were found to have existed prior to entry into service and that he was assigned a permanent E-3 profile. He was to have no duty requiring critical visual functions, color discrimination and no duty requiring unsupervised activity in dim light. A June 1965 medical board proceedings determined that the Veteran was medically unfit for further military service. His visual acuity with correction was right eye 20/40-3 and 14/21- and left eye 20/40-2 and 14/28. His condition was unchanged, incapacitating, and non-stabilized. It was found to have existed prior to service and was not incurred in the line of duty. Under clinical history, the Veteran was noted to have had poor vision that was not correctible by lenses since he was approximately six years old. Poor color vision was found on entry to service. His family history was positive in that his sister had a severe visual defect that had been treated without benefit. In the June 1965 separation examination, it was noted that the Veteran had familial, hereditary, retina degeneration with moderate impairment of visual acuity, severe impairment of color vision and poor dark adaptation bilaterally. His vision was right eye 20/300, correctable to 20/40-3 and left eye 20/400, correctable to 40-2. In a June 1965 statement with subject request for separation under provisions of Section XII, AR 635-40B, the Veteran acknowledged that he had been notified that he was considered unfit for miliary service as a result of a preexisting disability that was not aggravated by service. In a July 2011 affidavit, the Veteran stated that prior to service entrance, he wore glasses to correct his vision, had problems seeing at a distance and could not see the chalk board from the back of the classroom. He indicated that prior to service, he worked in the Naval Shipyard for a year and then went to college and did not have any problems with work or school due to his eyes. He asserted that during service, he was stationed in Hawaii and was on duty 10 days straight and then had four days off, which he usually spent at the beach. He noted that after ten months in the service, he was told he had problems discerning colors and had poor night vision. The Veteran asserted that following service he went back to perform his civil service at the Navy Shipyard. He indicated that he was told that his vision had deteriorated so much that if he had not previously worked there, they would not have given him a job. The Veteran stated that after service he never noticed any significant change in his eyesight. He stated in 1969, he went to renew his driver’s license and was told that he was not able to hold a driver’s license. After this, he said he sought medical treatment. The Veteran said that he was currently legally and totally blind and was diagnosed with retinitis pigmentosa. The Veteran asserted that upon discharge, his medical diagnosis was macular degeneration. However, in 1981 when his left eye was enucleated, the pathology report stated retinitis pigmentosa. In an August 2011 statement, the Veteran’s representative stated that the Veteran only wore glasses upon entrance into service and that the Veteran subsequently developed eye problems in service and was discharged because of this eye condition. At an April 2012 VA contract examination, the examining ophthalmologist found that the Veteran was totally blind with no light perception. The diagnosis was retinitis pigmentosa. The examiner commented that the Veteran entered service with best vision of 20/45 in each eye, no color vision, poor night vision and retinal pigmentary changes and left the service the same way some 10 to 11 months later. The examiner also noted that the Veteran had a sibling with a similar problem. In May 2012, the April 2012 examiner opined that it was less likely than not that the retinitis pigmentosa had its onset while the Veteran was on active duty. The examiner reasoned that retinitis pigmentosa was considered an inherited genetic trait and/or genetic defect present at the time of birth or essentially at conception. It was not an acquired trait and was not caused by external factors. The examiner further opined that the answer was unknown whether the Veteran’s retinitis pigmentosa was present in the left eye at the time of enucleation of that eye in 1981. The examiner reasoned that the records of the removed eye no longer existed according to the hospital’s response to the request for information. However, the examiner stated that the following three things were important: 1) the retinal changes characteristic of retinitis pigmentosa would not have gone away – the characteristic pathologic/microscopic changes would have been present for the pathologist to see; 2) the pathological changes that might have been described by a pathologist would reflect the loss of photoreceptors and the accumulation of pigment near and around vessels; and 3) the pathological changes would correlate with the clinical changes in the retina, but would not have identified retinitis pigmentosa per se – there was nothing pathognomonic for retinitis pigmentosa to be found in the pathological examination of an enucleated eye. The best that could have been stated might have been that the findings were consistent with retinitis pigmentosa. The examiner further opined that there was no clear and unmistakable evidence of pre-existence. The examiner stated that for clear and unmistakable evidence of pre-existence, a document delineating the signs and symptoms or a diagnosis of retinitis pigmentosa would be required that predated entry into the service. A record of this nature did not exist. However, the evidence of record was sufficiently strong as to reasonably conclude that retinitis pigmentosa did exist prior to service. The examiner noted that the Veteran entered service with vision in the right eye of 20/40 and left eye of 20/50 (using glasses obtained prior to service) and an absence of color vision (SF 88, induction physical). He was referred for and received an eye evaluation 22 days after entering the service with the following salient findings: 1) 20/40 in the right eye and 20/50 vision in the left eye; 2) pigmentary changes in the fundus of the eyes in both the macula and periphery; and 3) slight paleness of the disc temporally. The examiner also noted that retinal pigmentary changes, reduced best visual acuity and a complete lack of color vision did not develop suddenly in the Veteran. It was a virtual certainty that these findings pre-existed entrance to the service. Later eye examinations in the service treatment records added the history of poor night vision and a sister with poor vision who had a university evaluation and could not be helped. The examiner additionally determined that the Veteran’s condition less likely than not increased in severity during service. The examiner reasoned that the Veteran entered the service with 20/40 vision in each eye and left service with 20/40 vision in each eye. There was no evidence of record that the severity increased. The examiner noted there was slight variation in the recorded best visual acuity of the left eye, i.e. 20/40 to 20/50. However, these values were so close as to be interchangeable and reflect the slight variability of testing situations with an eye only capable of vision in the 20/40 to 20/50 range. The examiner further stated that the Veteran reported that he was exposed to very bright sunlight while in service in Hawaii which caused his vision to worsen. The examiner found that there were no studies in which an attempt was made to make retinitis pigmentosa worse or progress faster. However, studies had been conducted to see if reducing light exposure in one eye might reduce the rate of progression by patching or occluding one eye, wearing a dark contact lens, or sunglasses. These studies showed no retarding, slowing or saving effect compared to the fellow eye due to these light exposure reductions. Finally, the examiner concluded that there was no evidence of any increase of the Veteran’s vision problems in service. The examiner reiterated that the Veteran entered service with 20/40 vision in each eye and left service with the same vision. There was no evidence of record that a change in vision occurred. The examiner noted that retinitis pigmentosa is a progressive problem, but the Veteran was only in the service 11 months, apparently not long enough to demonstrate or document any progression. In a September 2012 clarifying VA opinion, the examiner stated that there existed competent evidence of record to indicate that the Veteran had retinitis pigmentosa prior to entering the service and did not first develop the symptoms in service. The examiner reasoned that the Veteran entered the service at age 21. His corrected vision was a poor 20/40 in each eye at the time. His visual acuity could not be improved with the eye/vision evaluation occurring 22 days after entering service. This finding alone indicated that some process existed to reduce vision prior to entering the service. A 21-year-old individual with normal eyes and visual system should be able to achieve corrected vision of 20/20 if there was no pre-existing problem. In addition, the Veteran was found to have complete lack of color vision and pigmentary changes in his retina. Neither of these developed suddenly. The evidence of uncorrectable vision (visual loss) at the time of entering the service along with complete absence of color vision and retinal pigmentation changes present and evaluation 22 days later constituted “obvious or manifest” evidence of a pathological visual problem pre-existing service. A later notation documented poor night vision prior to the service as well as a sibling with similar visual problems. All these traits were compatible and consistent with retinitis pigmentosa even though no specific mention of that entity existed in the service treatment records. The Board finds the May 2012 VA opinion with September 2012 clarifying VA opinion highly probative. The opinions are highly probative because they are based on a thorough review of the claims file to include specific references to relevant service treatment records; consideration of the Veteran’s relevant medical history, to include his sister with a severe uncorrectable visual defect; and expertise as an eye physician and surgeon in diagnosing, evaluation and treating retinitis pigmentosa. The examiner further provided detailed rationales for his conclusions, as delineated above. Thus, the Board affords his opinions great probative weight and finds them persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the VA examiner did not initially use the phrase clear and unmistakable evidence, it is clear the examiner ultimately concluded that retinitis pigmentosa did clearly and unmistakably preexist service. Notably, the law does not require a document predating service entrance to establish clear and unmistakable evidence. The Board finds it significant that the VA examiner referenced the Veteran’s vision at entrance to include absence of color vision; eye evaluation 22 days after entrance that revealed the same vision findings as the Veteran had on entrance to service, pigmentary changes of the eyes, and slight paleness of the disc temporally, and concluded that the retinal pigmentary changes, reduced best visual acuity and a complete lack of color vision did not develop suddenly. “It was a virtual certainty that these findings pre-existed entrance to service.” The examiner later stated this evidence constituted “obvious or manifest evidence of a pathological visual problem pre-existing service.” The Board concludes that the examiner concluding that it was a virtual certainty that the stated findings pre-existed service and that there is obvious and manifest evidence of a pathological visual problem pre-existing service constitutes clear and unmistakable evidence that the Veteran had a pre-existing eye disability. The Board also notes that in the May 2020 Memorandum decision, the Court specifically agreed with the Board’s finding concerning pre-existence of the Veteran’s eye disability. The Court noted that the Board specifically addressed that the VA contract examiner/ophthalmologist initially referred to a lack of ‘clear and unmistakable evidence’ but explained that the ophthalmologist’s ‘virtual certainty’ that the relevant symptoms pre-existed service and reliance on ‘obvious or manifest’ evidence of a pathological visual problem preexisting service to support his conclusion, constituted clear and unmistakable evidence that the Veteran had a preexisting eye disability. Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In the May 2020 Memorandum decision, the Court noted that in the September 2018 decision, the Board noted that the examining ophthalmologist concluded that it was "less likely as not" that the Veteran's condition had increased in severity during service. However, in the analysis, the Board found that the VA ophthalmologist's opinion was clear and unmistakable evidence sufficient to conclude that the eye disability was not aggravated during service. The Court indicated that in so finding, the Board did not discuss why the VA ophthalmologist's opinion met this higher standard than the one the ophthalmologist himself used in offering that opinion. Thus, the Court concluded that Board’s reasons and bases concerning the aggravation prong of the presumption of soundness analysis fell short because, unlike the Board's analysis of the first prong of the presumption of soundness, where it discussed the examiner's use of the ‘as likely as not’ standard but explained why that opinion nevertheless rose to the level of clear and unmistakable evidence, the Board failed to provide a similar explanation as to why the ophthalmologist's opinion of no increase of eye problems in service likewise constituted clear and unmistakable evidence of no aggravation. Accordingly, the Court found remand of the appeal was warranted for the Board to assess whether or not there is clear and unmistakable evidence of a lack of aggravation in service, and to provide sufficient reasons or bases for its conclusion. Upon further review, the Board concludes there is clear and unmistakable evidence of a lack of aggravation in service. Once again, the examining VA contract ophthalmologist, after review of the claims file, including the service treatment records, noted that the Veteran entered service with 20/40 vision in each eye and left service with 20/40 vision in each eye. The ophthalmologist also explained that the slight variation in readings during service (left eye 20/40 to 20/50) was simply the result of a slight variability of testing situations and was not indicative of any aggravation. The examiner also addressed the Veteran’s assertion that his sun exposure during service made his underlying eye problems worsen more quickly, explaining that no studies have been conducted to try to worsen retinitis pigmentosa but that studies conducted to see if the progression could be reduced, such as by covering an eye to reduce light exposure, revealed no slowing of the progression. In sum, the examiner found that there was no indication in the service treatment records that the Veteran’s visual acuity worsened during his short time in service; the examiner specifically concluded that there was no medical basis to credit the Veteran’s assertion that his sun exposure during service worsened his underlying visual disability; and the examiner did not find any other basis in the record to conclude that the Veteran’s pre-existing eye disability underwent any increase in severity during service. Notably, the VA examiner’s May 2012 opinion included the phrasing that the Veteran’s condition “less likely than not increased in severity during service.” However, the Board’s review of the underlying nature of the opinion reveals that it also meets the higher clear and unmistakable evidence standard. Given that the examiner concluded that the service treatment records indicated that the Veteran’s visual acuity did not worsen during his short time in service and that there was no medical basis to credit the Veteran’s assertion that his sun exposure during service worsened his underlying visual disability; and given that the examiner did not find any other basis in the record to conclude that the Veteran’s pre-existing eye disability underwent any increase in severity during service, the Board concludes that the opinion undebatably indicates that the Veteran’s pre-existing eye disability underwent no increase in severity during service and thus meets the higher standard of “clear and unmistakable evidence” of a lack of aggravation of the underlying disability during service. The Board also notes that there is no medical opinion evidence of record to the contrary (i.e. medical opinion evidence tending to indicate that the Veteran’s pre-existing visual disability increased in severity during service). Additionally, the Board notes that in his July 2011 affidavit, the Veteran essentially alleged that he was not having any visual problems prior to service other than problems with distance vision. However, as noted by the VA contract examiner, at entrance, the Veteran had a complete lack of color vision, a pathology that would not have developed suddenly. Thus, this evidence specifically contradicts the Veteran’s reporting of only having problems with distance vision. Accordingly, the Board does not find credible the Veteran’s July 2011 reporting of the extent of his vision problems at the time of his entry into service. Similarly, an earlier April 1996 statement by the Veteran indicating that prior to service, his only notable eye problem was needing to wear glasses while driving is found not credible based on this same reasoning. Accordingly, this reporting may not be afforded any probative value. In his August 2019 brief, the Veteran’s attorney argued that in the September 2018 decision, the Board ignored its own finding of fact that retinitis pigmentosa was not noted at the time of enlistment. The attorney asserted that as a result of this finding of fact, there was no measurement of the Veteran’s vision at his entrance into service and no evidence of record, as to what degree of visual impairment the Veteran had either prior to service or at entrance to service. The attorney also asserted that the VA contract examiner did not explain how there could be no increase in severity of the Veteran’s eye disability during service when he was found during active duty to have macular degeneration rather than retinitis pigmentosa and when his visual acuity was not shown to be measured for approximately 10 months from September 1964 to May 1965. The Board finds these arguments unconvincing. As explained above, it has been established, and confirmed by the May 2020 Court decision, that the Veteran did have a pre-existing visual disability even though it was not noted on entry. It is well within the expertise of an ophthalmologist, after review of the record, including the visual acuity testing that is contained in the service treatment records, to determine whether this visual disability worsened over the short course of the Veteran’s service. Moreover, there is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the visual disability did worsen during service). (Continued on the next page)   Also, at a September 1964 medical visit, pathology of the macula was noted. However, at the time of separation, the Veteran was found to have hereditary degeneration of the retina. It is well within the expertise of an ophthalmologist, a physician commonly known to specialize in diagnosing and treating eye diseases, including macular degeneration and retinitis pigmentosa, to recognize that the macular symptomatology and retinal degeneration noted in service were manifestations of what was later specifically determined to be retinitis pigmentosa, and to also assess whether or not this underlying disability increased in severity based on the eye disability assessments made in service, including the visual acuity testing. Given the VA contract ophthalmologist’s expertise, his ultimate determination, as explained in more detail above, represents clear and unmistakable evidence that the Veteran’s retinitis pigmentosa was not aggravated by service. Because the evidence clearly and unmistakably shows that the Veteran’s current claimed retinitis pigmentosa pre-existed service and was not aggravated by service, the presumption of soundness has been rebutted. Thus, the Board must conclude, under this controlling legal standard, that the Veteran’s retinitis pigmentosa pre-existed service and was not aggravated by service. Consequently, retinitis pigmentosa is not related to service or any event therein. Accordingly, the Board has no basis under the law for granting service connection for this disability and the instant appeal must be denied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.