Citation Nr: 21023499 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-23 637 DATE: April 20, 2021 ORDER Entitlement to service connection for retinitis pigmentosa is granted. FINDINGS OF FACT 1. The Veteran’s retinitis pigmentosa clearly and unmistakably existed prior to his period of active duty service given the congenital nature of the disease, but the symptoms of his current retinitis pigmentosa first manifested during service. 2. The evidence does not clearly and unmistakably show that the Veteran’s retinitis pigmentosa was not aggravated by military service. CONCLUSION OF LAW The criteria for service connection for retinitis pigmentosa have been met. 38 U.S.C. §§ 1110, 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to February 1999, from December 2001 to July 2002, from September 2003 to August 2008. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. In November 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. The Board remanded the matter in July 2019 and December 2020 for further development. Now the matter is returned to the Board. The Veteran is seeking service connection for retinitis pigmentosa. The Veteran contends that his retinitis pigmentosa condition had its onset in service. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s retinitis pigmentosa preexisted his military service from May 1985 to February 1999, from December 2001 to July 2002, from September 2003 to August 2008. The most competent and credible evidence of record shows that the Veteran’s retinitis pigmentosa is a congenital disease. See June 2020 Dr. M.S. Letter; January 2021 Medical Opinion Disability Benefits Questionnaire (DBQ). Service connection may be granted for diseases, but not defects, of congenital, developmental or familial origin. See VAOPGCPREC 82-90 (July 18, 1990). Therefore, the Board will consider the disability as if it was an acquired disorder. The Veteran’s May 1985 medical examination for Undergraduate Pilot Training is absent of any notations of defects, infirmities, or disorders related to eyes. Additionally, the evidence is at least in equipoise as to whether the Veteran’s retinitis pigmentosa manifested during service. In that regard, the Veteran’s private physicians and a VA examiner agreed that the Veteran’s retinitis pigmentosa manifested during service. See July 2014 Dr. H.Y. Letter; December 2015 Dr. L.H. Letter; October 2018 Dr. R.C. Letter; January 2021 Medical Opinion DBQ. Therefore, with respect to the Veteran’s retinitis pigmentosa, the presumption of soundness attaches. 38 C.F.R. § 3.304(b) (2019). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b) (2019). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). First, there is clear and unmistakable evidence that the Veteran’s retinitis pigmentosa preexisted service. As noted above, both the Veteran’s private physician and the VA examiner agrees that retinitis pigmentosa is a congenital condition. In particular, Dr. M.S. provided in June 2020 that “[r]etinitis pigmentosa is a condition that is genetically determined, meaning that the genetic mutation is present from birth, leading to subsequent disease manifestations.” Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “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, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran competently testified during the November 2018 hearing that he started to notice his night vision changes and impairment during his pilot duties in the mid-1990s. The Veteran stated that his trouble with nighttime air refueling began suddenly, despite his previous successes as a pilot, including completing 28 checkrides and graduating number 5 out of 46 in pilot training. The Board notes that the Veteran’s service record demonstrates the decline in his performance as a pilot, which is consistent with his testimony. See e.g., February 6, 1995 and February 17, 1995 Training Progress Records (some Pilot Induced Oscillation noted; slow recognition of relative movement and application of movement came a little too late during a dusk/nighttime training); February 12, 2002 and February 14, 2002 Aircrew Training Progress Reports (unable to complete nighttime refueling on both days); see also July 2014 Dr. H.Y. Letter (the Veteran was unable to get pilot license reinstated; it is more likely than not that the Veteran has had vision loss from his visual condition for more than 20 years). The Board acknowledges that the VA examiner opined in January 2021 that the Veteran’s claimed retinitis pigmentosa, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner’s only rationale for the opinion was that the records show no evidence of eye injury in service and “the condition progressed following its natural course.” As the examiner did not provide any further explanation in regard to the natural progression of retinitis pigmentosa condition, the Board cannot assign high probative weight to the January 2021 VA medical opinion. Based on above, the Board finds that the evidence of record does not clearly and unmistakably show that the Veteran’s retinitis pigmentosa was not aggravated by military service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. As to the nexus between the current retinitis pigmentosa disability and his vision issues in service, Dr. L.H. opined in December 2015 that it is at least as likely as not that the Veteran’s symptoms manifested in service were the first identifiable markers of his retinitis pigmentosa, and that the onset of this condition was during his time on active duty. The January 2021 VA examiner also provided that the Veteran’s retinitis pigmentosa symptoms did not manifest until after his entry on duty and the first time he was aware of his symptom was when he failed a nighttime refueling as a training exercise. Thus, the Board finds that the Veteran’s retinitis pigmentosa clearly and unmistakably existed prior to his period of active duty service given the congenital nature of the disease, but the symptoms of his current retinitis pigmentosa first manifested during service. Consequently, the Board finds that the Veteran’s entitlement to service connection for retinitis pigmentosa is warranted. 38 U.S.C. §§ 1110, 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2019). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.