Citation Nr: 21070700 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-15 709 DATE: November 24, 2021 ORDER Service connection for blindness due to bilateral retinitis pigmentosa (BRP) is granted. REMANDED Entitlement to total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound is remanded. FINDINGS OF FACT 1. The Veteran has a current disability of bilateral retinitis pigmentosa (BRP), which is a congenital disease. 2. The BRP was not noted at service entrance. 3. The BRP had onset during active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for blindness due to bilateral retinitis pigmentosa have been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2001 to August 2001, and from February 2003 to August 2005. This matter is on appeal from a September 2013 rating decision issued by the Regional Office (RO) in Portland, Oregon. With regard to the SMC issue, the Veteran filed a notice of disagreement (NOD) in October 2013. A statement of the case (SOC) was issued in April 2014. The Veteran filed a substantive appeal in May 2014. In terms of the issues of service connection for BRP and a TDIU, the Veteran filed another NOD in May 2014. The RO issued a SOC in March 2015, and the Veteran filed a substantive appeal in May 2015. A supplemental statement of the case (SSOC) was issued in January 2017, addressing all three issues on appeal. In February 2018, the Board remanded all three issues for an adequate VA examination. A VA examination was conducted in June 2018 and an addendum opinion was rendered in February 2019. A second SSOC was issued in July 2019. On August 27, 2019, the Board denied service connection for BRP. The Board also denied as a matter of law a TDIU and SMC because the Veteran did not have any service-connected disabilities at that time. In a December 2019 Board decision, the Board vacated the August 2019 Board decision. The Board found that on August 19, 2019 the Veteran submitted a request for extension for the three claims on appeal, which was associated with the record after the August 27, 2019 Board decision was issued. Thus, the Board granted the Veteran's request for an extension and vacated the August 2019 Board decision. A second order of vacation was issued in May 2020 in error. In response to the May 2020 administrative error, the Veteran has requested that the case be advanced on the docket. See October 2021 Motion to Advance on Docket. In the current Board decision, the Board grants the October 2021 motion to advance on the docket. 1. Service Connection for BRP Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (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. 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. See 38 C.F.R. § 3.303(d). A veteran will be considered to have been 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). With regard to congenital "diseases," while the presumption of soundness does not apply to congenital defects, the presumption does apply to congenital diseases, just as it does to non-congenital diseases. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). BRP is a congenital "disease" and not a defect. In this case, the Veteran reports that eye problems developed during active service, as evidenced by a July 2005 post-service deployment questionnaire. See May 2015 Substantive Appeal. The evidence shows that BRP was not "noted" at service entrance. There is no service entrance examination of record. In the entrance report of medical history, the Veteran did not report any eye related abnormalities. See March 2001 Report of Medical History. Because BRP or eye disorder was not "noted" at service entrance, the presumption that the Veteran's eyes were sound (normal) at service entrance attached. 38 U.S.C. § 1111. While the Veteran also contends that the BRP was aggravated by service, and there have been various misplaced references to aggravation by service during this claim, because BRP was not "noted" at service entrance, and the Board is not finding BRP preexisted service, such assertion of aggravation by (worsening during) service is not relevant to the claim. Once the presumption of soundness attached, this means that as a matter of fact and law there was no preexisting eye disorder, including BRP; as there is no preexisting eye disorder, the corollary question of aggravation (of a preexisting disability) is not reached in this case. In this case, where BRP was not "noted" at service entrance, the Board is not making a finding that the BRP preexisted service; therefore, the legal provisions at 38 U.S.C. § 1111 and 38 C.F.R. § 3.304 (requiring clear and unmistakable evidence to show both preexistence and nonaggravation where a disability is not "noted" at service entrance, in order to make a finding of fact that such "not noted" disability preexisted service and was not aggravated by service) are not applicable in this Veteran's case. The evidence in this case shows a current disability of bilateral retinitis pigmentosa (BRP), which is a congenital "disease." See September 2013 VA Examination. As the Board is treating this case as one for direct service connection, the preexisting and aggravation analysis is not relevant to this claim; rather, this is a claim for direct service connection for BRP. The Board is treating BRP, which is a congenital "disease," as any other disease for which direct service connection is sought. See Quirin, 22 Vet. App. at 396-97. The evidence is at least in equipoise on the question of whether the BRP had its onset during active service. The Veteran has explained that he was first made aware of the BRP disorder when he was diagnosed in service. See July 2012 Correspondence. During a March 2001 entrance physical standards board proceeding, the Veteran denied any prior knowledge or warning about the BRP. As the Veteran is presumed sound at service entrance, and the contemporaneous service treatment record evidence and the Veteran's statements both during service and during the current appeal show the onset of BRP symptoms during service, the Board finds that the BRP had its onset during service, that is, was "incurred in" service. See 38 C.F.R. § 3.303(a),(d). As mentioned above, the Veteran was first diagnosed with BRP upon service entrance in March 2001. During a March 2001 entrance physical standards board proceeding, the standards board noted that the Veteran had decreased visual acuity and difficulty with night vision; the standards board ultimately recommended discharge for failure to meet medical procurement standards as evidence by the "progressive" BRP and impaired night vision. See March 2001 Entrance Physical Standards Board Proceeding. The Veteran requested to be retained on active duty and was later cleared for deployment as a 91G military occupational specialty, which made him responsible for supervising and performing maintenance on combat vehicle, infantry and artillery fire control systems. The Veteran received an eyewear prescription in April 2001. Eventually, in February 2005, the Veteran was restricted to daytime driving because of the visual impairment caused by the BRP. Poor night vision was noted again in the July 2005 post-service deployment questionnaire. See July 2005 Service Treatment Records. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for blindness due to BRP have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to TDIU is remanded. 3. Entitlement to SMC based on Aid and Attendance is remanded. The adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In the instant decision, the Board grants service connection for BRP, which requires the RO in order to rate the disability, including any development necessary to provide the initial rating. The impairment caused by BRP will need to be considered when determining the TDIU question of whether service-connected disabilities render the Veteran unable to obtain or maintain substantially gainful employment, as well as the SMC question of whether service connected disabilities render the Veteran in need of the aid and attendance of another person. As such, the Board will remand the issues of TDIU and SMC for aid and attendance. The issues of TDIU and SMC for aid and attendance are REMANDED for the following action: After the BRP disability has been initially rated by the RO, then readjudicate the issues of TDIU and SMC based on the need for aid and attendance. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, Associate 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.