Citation NR: 9712346 Decision Date: 04/08/97 Archive Date: 04/18/97 DOCKET NO. 92-56 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to compensation benefits for retinitis pigmentosa prior to March 29, 1989. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Hayden, Counsel INTRODUCTION The veteran performed active duty from October 1950 to October 1952. The present appeal has been taken from an April 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (RO) which denied service connection for retinitis pigmentosa. During the pendency of a remand by the Board of Veterans' Appeals (the Board), a February 1996 rating decision granted service connection for retinitis pigmentosa and assigned a 100 percent evaluation effective March 29, 1989. The veteran has continued to appeal the assigned effective date. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to compensation benefits prior to March 29, 1989. He asserts that the 1964 rating decision which denied service connection for retinitis pigmentosa was clearly and unmistakably erroneous. The error consisted of failing to consider the presumption of soundness and the presumption of aggravation and by failing to resolve reasonable doubt in his favor when there was significant positive evidence that retinitis pigmentosa had either began in service or had increased beyond the severity expected from natural progress. In the alternative, he asserts that the communication submitted by him in February 1964 was a valid notice of disagreement and that he has a timely appeal from the 1964 rating decision. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran is not entitled to compensation benefits for retinitis pigmentosa prior to March 29, 1989. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal is of record. 2. The January 1964 rating decision was not clearly and unmistakably erroneous. 3. The February 1964 letter from the veteran was not a notice of disagreement; the January 1964 rating decision was not appealed within one year from the date he was notified of it. 4. Liberalizing interpretation of the law in the form of revision of Manual M21-1 was effective March 29, 1989. 5. What has been accepted by the RO as the veteran’s request for review of his claim for service connection for retinitis pigmentosa was received on March 23, 1990. CONCLUSIONS OF LAW 1. The January 1964 rating decision denying service connection for retinitis pigmentosa is final. 38 U.S.C. § 4005 (1963) (now 38 U.S.C.A. § 7105(c) (West 1991)); 38 C.F.R. § 3.105 (1963). 2. Compensation benefits for bilateral retinitis pigmentosa are not warranted prior to March 29, 1989. 38 U.S.C.A. §§ 5107(a), 5110(g), 7105 (West 1991); 38 C.F.R. §§ 3.105(a), 3.114(a), 3.400(p) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran’s claim for an earlier effective date is “well grounded” within the meaning of 38 U.S.C.A. § 5107(a). It is a part of the claim which led to the grant of service- connection for retinitis pigmentosa. All relevant facts have been properly developed. The assigned effective date is based on a liberalization of the VA rules and there is no indication that there are other records available which would revise the Board's decision. The record with regard to the issue on appeal is complete, and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). The veteran originally applied for service connection for bilateral retinitis pigmentosa in October 1963. A January 1964 rating decision denied service connection for retinitis pigmentosa because there was “clear” evidence of defective vision prior to service and no evidence of “aggravation beyond natural progress during service.” The veteran contends, in the alternative, that the 1964 rating decision which denied service connection for retinitis pigmentosa was clearly and unmistakably erroneous or that he has a timely appeal from that rating decision because a February 1964 communication was a valid notice of disagreement. A September 1950 preinduction examination found no significant abnormality in either eye; uncorrected distant visual acuity was 20/20 in each eye. A 1951 neurological examination report shows an impression of retinitis pigmentosa. An undated ophthalmologic examination, made during service, found retinitis pigmentosa; uncorrected distant visual acuity was 20/40 in the right eye and 20/50 in the left eye. Because of markedly restricted visual fields and “the progressive nature of the disease,” the examiner recommended that the veteran be separated EPTS (existed prior to service). An October 1952 separation examination found his eyes to be normal; uncorrected distant visual acuity was 20/30 in each eye. A December 1963 VA eye examination found advanced retinitis pigmentosa, with secondary cataracts, in both eyes. Corrected visual acuity was hand movements in the right eye and 10/200 in the left eye; visual fields were constricted. See 38 C.F.R. § 4.76a, Table III (1996). Finality of the January 1964 Rating Decision Initially, the veteran asserts that a determination regarding service-connection was not made following his original claim in 1963. Although the January 1964 rating decision listed the issue as “pension,” a review of the decision shows that medical findings during service were discussed and there were findings regarding the existence of retinitis pigmentosa prior to service and discussing the increase in severity during service. This discussion is consistent with a decision regarding service-connection. A decision which was not appealed within one year from the date of notification by filing a notice of disagreement became final and was not subject to revision on the same factual basis unless clearly and unmistakably erroneous. 38 U.S.C. § 4005 (1963) (now 38 U.S.C.A. § 7105); 38 C.F.R. § 3.105(a) (1963). In order for there to be a valid claim of clear and unmistakable error, the correct facts, as they were known at the time, must not have been before the adjudicator or the proper laws or regulations must have been incorrectly applied. Russell v. Principi, 3 Vet.App. 310, 313 (1992). A difference of opinion as to how the evidence was weighed is not clear and unmistakable error. An appellant "must assert more than just a disagreement as to how the facts were weighed or evaluated." Russell, quoted in Allin v. Brown, 6 Vet.App. 207 (1994). The veteran has asserted that the presumptions of soundness and aggravation, both of which were applicable, were not applied in his case in the 1964 rating decision. The law in effect at the time of the January 1964 rating decision provided that service connection would be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 310, 331 (1963) (now 38 U.S.C. §§ 1110, 1131). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1963). There was a presumption of soundness at entry; that is, that there was no disease or injury at the time the veteran entered service, unless noted on examination. Clear and unmistakable evidence that a disease existed prior to service would rebut the presumption of soundness at entry. 38 U.S.C. § 311 (1963) (now 38 U.S.C. § 1111). "Aggravation" was to be considered when there was an increase in disability during service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 353 (1963) (now 38 U.S.C. § 1153). For wartime service, clear and unmistakable evidence was required to rebut the presumption of aggravation. That could include medical facts and principles. 38 C.F.R. § 3.306(a)(b) (1963). At the time of the January 1964 rating decision, the VA adjudication manual, Manual M21-1, considered retinitis pigmentosa as being of familial origin, thus, as existing prior to enlistment. M21-1 § 50.05d (1962). In a letter dated February 14, 1996, the Director of the VA Compensation and Pension Service stated that the denial under procedures then in effect (January 1964) was proper. The Director has reported that, under VA procedures in effect at the time of the 1964 rating decision, service-connection for retinitis pigmentosa was denied on the basis that it was a hereditary condition and, as such, service connection was not to be established. He also reported that M21-1 had been revised, effective March 29, 1989, to provide for service connection for retinitis pigmentosa. Even though service-connection for retinitis pigmentosa could not have been granted in 1964, a review of the January 1994 rating decision shows that both the presumptions of soundness and aggravation were considered by the RO. In the January 1964 rating decision, the RO stated that there was clear evidence that retinitis pigmentosa had preexisted service, presumably the ophthalmologist’s opinion of "EPTS," which rebutted the presumption of soundness and a finding that there had been no increase in severity during service beyond that which would be expected from natural progress which rebutted the presumption of aggravation. In addition, M21-1 § 50.05d stated at that time that retinitis pigmentosa was regarded as of familial origin, “thus existing prior to service.” The ophthalmologist who examined the veteran in service and recommended separation, noted the "progressive" nature of retinitis pigmentosa. These statements were presumably based on examination of the veteran and the ophthalmologist’s knowledge of the medical facts and principles. Thus, there was evidence to support the RO’s conclusions that retinitis pigmentosa existed prior to service and to support the finding that the increase in disability during service was due to natural progress. The veteran argues that the evidence was insufficient to support those findings. However, that argument goes to the weight given to the evidence which is not sufficient for a claim of clear and unmistakable error. Allin v. Brown, 6 Vet.App. 207. There has been no assertion that there were known facts which were not available to the decision makers and a review of the evidence of record does not show that there were any facts which were known but not considered which would have changed the decision. The January 1964 rating decision was based on the interpretation of the law at the time. See M21-1 § 50.05 (1962). Since all pertinent evidence was considered and the decision was based on the interpretation of the law at the time, that decision was not clearly and unmistakably erroneous. Russell v. Principi, 3 Vet.App. 310, 313. In the alternative, the veteran contends that the February 1964 communication was a valid notice of disagreement. The 1964 revision of 38 C.F.R. provided that on and after January 1, 1963, an appeal would consist of a timely filed notice of disagreement in writing, and after issuance of a statement of the case, a timely filed substantive appeal. A notice of disagreement was defined by the Rules of the Board of Veterans’ Appeals as a written communication from a claimant or his representative expressing dissatisfaction and disagreement with an adjudicative determination of an agency of original jurisdiction. The notice was supposed to be in terms which could be reasonably construed as evidencing a desire for review of that determination. 38 C.F.R. § 19.1a (1964). The veteran was notified of the denial of service connection for retinitis pigmentosa in January 1964. In February 1964, he submitted a statement in which he said “I do not understand the pension award being made on a nonservice disability because my eye condition was not first noticed until 1951 and later diagnosed in 1952 while I was still in the service. Investigation into my service medical records will show this to be true. I believe further investigation should be made.” No special words were required for a notice of disagreement. It was sufficient that a statement express dissatisfaction and disagreement with a determination and evidence a desire for review of that determination. The veteran reported in the February 1964 letter that he did not “understand” the denial of service connection; he did not express “dissatisfaction and disagreement,” nor did he request appellate review. Rather, he requested that the RO further investigate his claim. Because there is nothing in that letter which could be reasonably construed as evidencing a desire for appellate review of that determination, the letter did not meet the requirements for a notice of disagreement. 38 C.F.R. § 19.1a (1964). The veteran asserts that he should have been furnished a statement of the case. However, a statement of the case is furnished pursuant to a timely notice of disagreement. Since the veteran’s letter was not a notice of disagreement, there was no error in not furnishing him a statement of the case. Because the January 1964 rating decision was not clearly and unmistakably erroneous and was not appealed within one year from the date of notification, it is final. 38 U.S.C. § 4005 (1963) (now 38 U.S.C. § 7105); 38 C.F.R. § 3.105(a) (1963). Effective Date A final decision may be revised by the submission of new and material evidence or pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction. In this case, there was no new and material evidence submitted. In an opinion dated March 5, 1985, the Office of General Counsel of the Veterans Administration (now Department of Veterans Affairs) issued an opinion that service-connection could be granted for retinitis pigmentosa as a "disease" of congenital, developmental or familial origin, but that the VA is ordinarily justified in finding that such disease pre- existed military service. Op. G.C. 1-85, March 5, 1985. On January 23, 1986, M21-1 § 50.09d was changed to include that, if no other cause was shown for retinitis pigmentosa, it was considered to be hereditary, and service connection was to be determined on whether or not there was aggravation of that preexisting condition during service. M21-1 § 50.09d (1986). The March 1985 General Counsel opinion was later updated, to include the principle that a hereditary disease did not always rebut the presumption of soundness. Op. G.C. 8-88, published November 7, 1988, republished as VA O.G.C. Prec. Op. 67-90 (July 18, 1990). Pursuant to that opinion, Op. G.C. 8-88, VA Manual M21-1 was revised on March 29,1989, to provide that service-connection for hereditary diseases, including retinitis pigmentosa, could be granted on the basis of incurrence in service. M21-1 § 50.78f (1989). The revision of VA Manual M21-1 represented a liberalizing VA issue approved by the Administrator (now Secretary). While changes in the law subsequent to the original decision may provide grounds for reopening a case, they do not provide a basis for revising a final decision. Russell v. Principi, 3 Vet.App. 310, 313 (1992). Therefore, while the opinions provided a basis for a grant of service connection subsequent to the receipt of the May 1990 claim, they do not create a basis for a revision of the January 1964 rating decision, which initially denied service connection for retinitis pigmentosa. Generally, the effective date of an award of service connection is fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In cases involving a change pursuant to a liberalizing law or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of an award of service connection is fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. §§ 3.114(a), 3.400(p). If the claim is reviewed at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). Although the veteran filed a reopened claim for service connection for retinitis pigmentosa in May 1990, there is a letter from the veteran received on March 23, 1990, in which he said that he was totally blind from retinitis pigmentosa which was accepted by the RO as a request for review of his claim. It was received within one year of the effective date of the administrative issue. The currently assigned effective date is the earliest that can be assigned since any earlier date would be earlier than the effective date of the administrative issue which would violate 38 C.F.R. § 3.114(a). Without reaching the question of whether service connection would have been warranted by the evidence on the basis of aggravation as provided by the 1985 General Counsel opinion and the 1986 M21-1 change, even if the March 1985 General Counsel opinion, the 1986 change to M21-1, or the September 1988 General Counsel opinion was accepted as a liberalizing or administrative issue, there is no communication from the veteran prior to March 1990 that indicates a request for review of the service connection claim under the provisions of 38 C.F.R. § 3.114. ORDER Compensation benefits for retinitis pigmentosa prior to March 29, 1989, are denied. WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -