Citation Nr: 9933664 Decision Date: 12/01/99 Archive Date: 12/10/99 DOCKET NO. 92-56 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date prior to March 29, 1989, for the grant of service connection for retinitis pigmentosa. REPRESENTATION Appellant represented by: Theodore C. Jarvi, Attorney ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from October 1950 to October 1952. This matter comes to the Board of Veterans' Appeals (Board) from a February 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO granted entitlement to service connection for retinitis pigmentosa and assigned a 100 percent disability rating for the disorder effective March 29, 1989. The veteran has perfected an appeal of the effective date for the grant of service connection. The veteran's appeal was previously before the Board in April 1997, at which time the Board denied entitlement to an effective date prior to March 29, 1989. The Board found that a January 1964 rating decision in which the RO had denied service connection for retinitis pigmentosa was final, and that the decision was not based on clear and unmistakable error. The veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (the Court of Veterans Appeals prior to March 1999) (Court). In a November 1998 decision the Court affirmed the Board's finding that the January 1964 rating decision was not clearly and unmistakably erroneous, but vacated that portion of the Board's April 1997 decision pertaining to the finality of the January 1964 rating decision. The Court held that the January 1964 decision had not become final because the veteran had timely submitted a notice of disagreement with that decision. The Court remanded the issue of the veteran's entitlement to an effective date prior to March 29, 1989, to the Board for re- adjudication in accordance with the Court's remand order. FINDINGS OF FACT 1. The veteran initially claimed entitlement to service connection for retinitis pigmentosa on October 7, 1963. 2. The veteran met all of the requirements for entitlement to service connection for retinitis pigmentosa on October 7, 1963. 3. The January 1964 rating decision in which service connection for retinitis pigmentosa was denied is not a final decision in that the veteran timely perfected an appeal of that decision. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 7, 1963, for the grant of service connection for retinitis pigmentosa are met. 38 U.S.C. § 4005(c) (1958), 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(b) (1998); VAOPGCPREC 11-99. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records show that on entry into service in September 1950 no eye abnormalities were found and his visual acuity was determined to be 20/20 in both eyes. In May 1951 he complained of increasing difficulty seeing at night since age 15. He also reported that both parents and one brother had night blindness. As the result of an ophthalmology examination the examiner determined that the veteran had moderately severe retinitis pigmentosa with a ten-degree field of vision, night blindness, and corrected visual acuity of 20/30 bilaterally. The examiner recommended, due to the markedly restricted field of vision, night blindness, and the progressive nature of the disease, that the veteran be separated from service. The examiner also found that the disorder had existed prior to the veteran's entry into service. As the result of a July 1951 neurological evaluation the neurologist determined that the veteran had grand mal cerebral seizures and retinitis pigmentosa, both of which were familial in origin. On October 7, 1963, the veteran initially submitted a claim of entitlement to service connection for an eye disorder. At that time he submitted a private medical report showing that he had received treatment since 1957 for bilateral retinitis pigmentosa. The private physician stated that the veteran's best vision was 20/60 bilaterally, that he had ten degree diameter fields, and that he had mild bilateral lens opacities. The report of a December 1963 VA examination indicates that the veteran reported having difficulty with night vision for the previous 18 years, but that his visual acuity had markedly decreased over the last seven years. On testing his corrected vision was described as hand movement at six inches in the right eye and 10/200 in the left eye. In addition to a diagnosis of bilateral retinitis pigmentosa, advanced, the examiner stated that the veteran had bilateral immature cataracts secondary to the retinitis pigmentosa. The examiner did not provide an opinion as to the date of onset of the disorder, or whether it was aggravated during service. In an undated rating decision, which was issued in January or February 1964, the RO found that the veteran had defective vision prior to service based on his in-service report of difficulty seeing at night since age 15. The RO also found that there was no evidence of aggravation of the pre-existing disorder beyond the natural progress of the disease during service. The RO determined that the veteran was permanently and totally disabled for nonservice-connected pension purposes. The veteran was notified of that decision in February 1964. In a statement received at the RO in February 1964 the veteran stated that he did not understand the pension award being made based on a nonservice-connected disability because his eye disorder was first noted in 1951 and diagnosed in 1952, while he was still in service. He also stated that an investigation of his service medical records would show this to be true, and that a further investigation should be made. The RO did not provide any response to the February 1964 statement and did not issue a statement of the case to the veteran. An examination report that was received at the RO in October 1972 indicates that the veteran was totally blind in both eyes due to retinitis pigmentosa. In November 1972 the RO granted entitlement to special monthly pension based on the need for regular aid and attendance. VA treatment records show that the veteran continued to receive periodic evaluations for retinitis pigmentosa through January 1993. In a statement received on March 23, 1990, the veteran inquired about the status of his pension benefits, and reported being totally blind due to retinitis pigmentosa. In a May 1990 statement he requested reconsideration of the previously denied claim for service connection for retinitis pigmentosa based on a change in VA regulations and new and material evidence. He asserted that a 1985 VA Office of the General Counsel (OGC) opinion ruled that retinitis pigmentosa is a chronic disease, not a developmental defect, and that the OGC opinion constituted new and material evidence warranting reopening the previously denied claim. In July 1990 the RO informed the veteran that service connection for retinitis pigmentosa had been denied in 1964 on the basis that the disorder had pre-existed service and had not been aggravated by service beyond the normal progress of the disease. The RO also informed him that the 1964 rating decision had become final, and that in order to reopen the claim he had to submit new and material evidence showing that the disorder was incurred in or aggravated by service. The veteran submitted a notice of disagreement pertaining to the denial of service connection for retinitis pigmentosa in August 1990, and in November 1990 the RO informed him that the notice of disagreement had not been timely filed, in that service connection for retinitis pigmentosa had been denied in 1964. The RO also informed the veteran that the 1985 OGC opinion was not relevant to his claim, because that opinion applied to the situation in which retinitis pigmentosa initially became manifest during service or was shown to have been aggravated by service. The RO reiterated that in his case retinitis pigmentosa had become manifest prior to entering service, and that the disorder had not been aggravated by service. In February 1991 the veteran's representative claimed that entitlement to service connection for retinitis pigmentosa was warranted and asked that a statement of the case be issued if service connection remained denied. The representative provided a copy of a letter from the Director of the Compensation and Pension Service (CPS) to all VAROs indicating that a 1990 opinion from the OGC pertaining to service connection for hereditary diseases that initially became manifest during service was a liberalizing VA issue, and that new and material evidence was not required to reopen a claim for service connection for a hereditary disease. In an April 1991 rating decision the RO again denied entitlement to service connection for retinitis pigmentosa. The RO found that evidence to rebut the previous denial had not been submitted, and that retinitis pigmentosa had pre- existed service and was not aggravated by service beyond the natural progress of the disease. The veteran perfected an appeal of the April 1991 decision. In July 1993 the Board remanded the case to the RO for the development of additional evidence, including post-service treatment records. In September 1995, while the case was still pending at the RO, the veteran's representative requested an administrative review of the case by the Director of CPS. The representative claimed that the decision of the RO to deny service connection was clearly erroneous in that there was no evidence of record indicating that the disorder existed prior to service and that, if it had, the disorder was aggravated by service. In a February 1996, decision the Director of CPS granted entitlement to service connection for retinitis pigmentosa. The CPS found that the denial of service connection in 1964 was improper because no eye problems were noted when the veteran entered service and retinitis pigmentosa was diagnosed during service. The CPS also found that the conclusion that the disorder pre-existed service was not supported by the evidence of record, but made no reference to the May 1951 medical opinion that the disorder had existed prior to the veteran's entry into service. The CPS further found that if the disorder had pre-existed service, the evidence of reduced visual fields and night blindness during service was clear evidence that the disease had increased in severity beyond the natural progress of the disease. The CPS cited no medical evidence in support of this conclusion. The CPS stated that under procedures in effect in 1964, service connection for retinitis pigmentosa had been denied on the basis that the disorder was hereditary in nature and not subject to service connection. The CPS cited to a September 1988 opinion of the OGC that the status of a disease as hereditary did not rebut the presumption of soundness, and that service connection could be established for a hereditary disease that first became manifest during service or, if the disorder pre-existed service, was aggravated by service. Based on the September 1988 opinion VA operating instructions were revised effective March 29, 1989, to provide for service connection for hereditary diseases. The CPS found, in light of the September 1988 opinion and the corresponding change to VA policy, that the denial of service connection in April 1991 was clearly and unmistakably erroneous. The CPS granted entitlement to service connection for retinitis pigmentosa effective March 29, 1989, the effective date of the change in VA policy. This change was interpreted as being liberalizing in accordance with the provisions of 38 C.F.R. § 3.114 (1998). In the February 1996 rating decision here on appeal the RO implemented the decision by the CPS and assigned a 100 percent rating for retinitis pigmentosa effective March 29, 1989. In his April 1996 notice of disagreement and June 1996 substantive appeal pertaining to the effective date for the grant of service connection the veteran asserted that he had claimed entitlement to service connection for retinitis pigmentosa in October 1963, which claim had never been adjudicated. As an alternative he claimed that he had submitted a notice of disagreement with the denial of service connection, but that a statement of the case had not been issued. He asserted that his October 1963 claim was still pending, and that he was entitled to an effective date in October 1963 for the grant of service connection. II. Laws and Regulations Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). Where compensation is awarded pursuant to a liberalizing law or VA issue, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. If a claim is reviewed more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. 38 C.F.R. §§ 3.114, 3.400(p). A the time of the January 1964 decision in which service connection for retinitis pigmentosa was denied, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) provided that "in considering actual disease of the eye, the usual consideration will be given to the probability of congenital origin. . . . Retinitis pigmentosa, notwithstanding that the disease or its effects may not be known to the disabled person before he undertakes military service, is regarded as of familial origin, thus as existing prior to enlistment." Manual M21-1, chapter 50, 50.05(d) (June 4, 1962). In April 1985 the VA OGC issued an opinion in which it was held that service connection could be granted for diseases, but not defects, of congenital, developmental, or familial origin. Service connection could be established if the evidence as a whole showed that the disorder of familial origin was incurred in or aggravated during service within the meaning of VA laws and regulations. VAOPGC 1-85 (1985). As a result of the April 1985 opinion, the Manual M21-1 provisions were changed in January 1986 to provide that if the issue was service connection for retinitis pigmentosa, the disease was generally considered to be hereditary in nature and that service connection should be determined on whether the disorder was aggravated during service. Manual M21-1, chapter 50, 50.09(d) (Jan. 3, 1986). In September 1988 the OGC issued an additional opinion regarding congenital and development defects versus diseases. The OGC held that "an hereditary disease . . . does not always rebut the presumption of soundness . . . . Service connection may be granted for hereditary diseases that either first became manifest during service, or which pre-existed service and progressed at an abnormally high rate during service. VAOPGC 8-88 (Sept. 29, 1988), reissued as VAOPGCPREC 67-90 (O.G.C. 67-90) (1990). Following the September 1988 opinion the Manual M21-1 instructions were changed effective March 29, 1989, to provide that "service connection may be granted, if warranted, for diseases of congenital, developmental, or familial (hereditary) origin which either first manifest themselves during service or which preexist service and progress at an abnormally high rate during service." Manual M21-1, 50.78 (March 29, 1989). As previously stated, in the November 1998 Court order vacating the Board's April 1997 determination as to the finality of the 1964 decision the Court found that the veteran's February 1964 statement constituted a notice of disagreement. Because the veteran was not provided a statement of the case, the 1964 decision did not become final, and the Court found that the October 1963 claim remained in appellate status until February 1996, at which time service connection was granted. 38 U.S.C.A. § 4005(c); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). The Court's holding on the lack of finality of the 1964 rating decision is the law of the case. Harris v. Brown, 7 Vet. App. 547 (1995). In arguments before the Court in conjunction with the veteran's appeal the Secretary's representative stated that an absolute bar to service connection for retinitis pigmentosa existed in 1964 and that, therefore, the Board's error in finding that the 1964 decision was final was harmless. This position was based on the provisions of the Manual M21-1 extant at that time, which the Secretary's representative interpreted as precluding service connection for the disorder on the basis that the disorder was hereditary in nature. The Secretary's representative and the Board, in its April 1997 decision, concluded that service connection was granted by CPS in February 1996 due to the liberalizing changes in VA policy brought about by the April 1985 and September 1988 OGC opinions. In the November 1998 decision the Court found that the correct effective date for the grant of service connection could not be resolved until the Board had made findings pertaining to four specific issues. Those issues were: 1) To the extent that Manual M21-1 instructions in 1964 purported to constitute an absolute bar to service connection for retinitis pigmentosa, was such a provision a valid exercise of regulatory authority? 2) To the extent that Manual M21-1 instructions in 1964 created a valid limitation on service connection, did those provisions bar service connection for in-service aggravation of the disorder that was presumed to have pre-existed service? 3) If the Board found that the Manual M21-1 instructions in 1964 did not create an absolute bar to service connection for retinitis pigmentosa, the Board was to determine the appropriate effective date for the grant of service connection in accordance with the relevant law. 4) If the Board found that service connection for retinitis pigmentosa was previously barred, the Board was to address whether the application of 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114(a) would permit an award of service connection based on the effective date of the liberalizing VA issue. III. Analysis In March 1999 the Board requested an opinion from the OGC regarding the four specific issues remanded by the Court. In a September 1999 opinion the OGC held that: a. The provisions in paragraph 50.05 of chapter 50 of [Manual M21-1] extant in 1964 did not purport to bar service connection for the in-service aggravation of pre-existing retinitis pigmentosa. b. The effective date of the award of compensation for retinitis pigmentosa in the case giving rise to the opinion request is governed by the generally- applicable provisions of 38 U.S.C. § 5110(a), unless the Board determines, based on its review of the record, that another provision in chapter 51 of title 38, Unites States Code, is applicable to that effective date determination. c. Because the statutes and regulations existing at the time of the veteran's claim for benefits permitted an award of service connection for in-service aggravation of retinitis pigmentosa, subsequent [VA OGC] opinions and changes to [Manual M21-1] cannot be considered "liberalizing" changes which created the right to such benefits. Accordingly, the effective dates of those documents do not govern the effective date of the veteran's award under 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a). VAOPGCPREC 11-99. The opinion provided by the OGC is binding on the Board. Swanson v. West, No. 95-1082 (U. S. Vet. App. June 23, 1999). The Board finds, based on that opinion, that the Manual M21-1 instructions in 1964 did not constitute an absolute bar to service connection for retinitis pigmentosa, nor did those provisions bar service connection for in-service aggravation of the disorder if it pre-existed service. Because the Manual M21-1 instructions in 1964 did not bar service connection for the in-service aggravation of retinitis pigmentosa, whether it was found to have become manifest prior to service or was presumed to have pre-existed service due to the hereditary nature of the disease, the April 1985 and September 1988 OGC opinions were not liberalizing changes in the law. The provisions of 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114 are not, therefore, applicable in determining the effective date for the grant of service connection for retinitis pigmentosa. Because the statute and regulation pertaining to liberalizing changes in the law are not applicable, the effective date for the grant of service connection is determined by applying the basic provisions of 38 U.S.C.A. § 5110(a). The veteran did not claim entitlement to service connection within one year of his separation from service, consequently service connection may not be established as of the day following his separation from service. 38 U.S.C.A. § 5110(b)(1). In accordance with 38 U.S.C.A. § 5110(a), the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. The evidence shows, and the Court determined, that the veteran claimed entitlement to service connection on October 7, 1963, and that that claim remained pending until service connection was granted in February 1996. The February 1996 decision did not become final because the veteran perfected an appeal of that decision, which appeal remains pending as the result of the Court's vacating the Board's April 1997 decision in terms of the effective date to be assigned for the grant of service connection. The evidence which served as the basis for the 1996 grant of service connection was of record at the time of the veteran's October 1963 claim for service connection. That evidence consisted of the service medical records which were interpreted as showing that retinitis pigmentosa either had its onset in service or was permanently aggravated beyond natural progression during service. There was also evidence of current retinitis pigmentosa in the form of the statement from Frank Schiff, M.D. reporting treatment for retinitis pigmentosa since 1957. In its February 1996 decision the CPS found that retinitis pigmentosa had not pre-existed service and had initially become manifest during service. The CPS also found that, if the disease had pre-existed service, the medical evidence established that the disease was aggravated by service. Although the grant of service connection by CPS was based on a finding that the intervening OGC opinions constituted a liberalization of the law in effect in 1964, that finding has subsequently been determined to be invalid. The Board concludes that entitlement to service connection was shown as of the date of the veteran's claim for service connection, October 7, 1963. Therefore, the Board concludes that the correct effective date for the grant of service connection for retinitis pigmentosa is October 7, 1963. ORDER Entitlement to an effective date of October 7, 1963, for the award of service connection for retinitis pigmentosa is granted. Mark D. Hindin Member, Board of Veterans' Appeals