Citation Nr: 1315870 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 07-37 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder, to include cataracts of both eyes, claimed as secondary to service-connected residuals of a traumatic brain injury (TBI). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from July 1956 to May 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2007 and April 2008 rating decisions of the RO in North Little Rock, Arkansas. In the April 2007 rating decision, in pertinent part, the RO denied service connection for cataracts of both eyes, and in April 2008 the RO denied entitlement to a TDIU. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In this regard, the Veteran's service connection claim on appeal was previously characterized as entitlement to service connection for cataracts of both eyes; however, the record shows that he also has a refractive error of both eyes. Thus, the Board has generally characterized the issue as a claim for entitlement to service connection for a bilateral eye disorder, to include cataracts of both eyes. In December 2009, the Veteran testified at a personal hearing at the RO before the undersigned Veterans Law Judge (i.e., a Travel Board hearing). A transcript of that hearing is associated with the claims folder. In August 2010 and again in August 2012, the Board remanded the issues listed on the first page of this decision to the agency of original jurisdiction (AOJ) for additional development. The case now returns to the Board for further appellate review. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records dated through March 2013. While such were obtained prior to the issuance of the most recent March 2013 supplemental statement of the case, such document does not explicitly list or consider such records in the readjudication of the Veteran's claims. The date of the last VA treatment records specifically considered by the AOJ were dated in March 2012 and referenced in the June 2012 supplemental statement of the case. In regard to the records dated from March 2012 to March 2013 that were not explicitly considered by the AOJ, the Board notes that such fail to address the Veteran's bilateral eye disorder. Therefore, as the additional evidence is essentially duplicative of the evidence previously considered by the AOJ and, as such, is not relevant to such service connection claim, the Board may proceed with a decision without prejudice to the Veteran. 38 C.F.R. § 20.1304(c) (2012). Furthermore, as the Board herein grants a TDIU effective September 8, 2011, there is no prejudice to him in the Board considering such VA treatment records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not have a refractive error of the eyes in service and there is no evidence of an additional disability of the eyes superimposed on such refractive error, to include bilateral cataracts, that is related to military service. 2. The Veteran's bilateral cataracts first manifested after service, are not causally or etiologically related to any disease, injury, or incident in service, and are not caused or aggravated by his service-connected TBI residuals. 3. The Veteran is service-connected for TBI residuals and cold injury residuals of the bilateral upper and lower extremities; his combined rating is 90 percent, effective August 15, 2007. 4. Prior to September 8, 2011, the Veteran's impairment from the combined effects of his service-connected disabilities did not preclude him from securing and following substantially gainful employment. 5. As of September 8, 2011, the Veteran's service-connected disabilities, to specifically include residuals of a TBI resulting in moderate to severe cognitive efficiency, attention span, working memory, confusion, and anxiety-related symptoms, preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral eye disorder, to include cataracts of both eyes, are not met. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.310 (2012). 2. As of September 8, 2011, but no earlier, the criteria for a TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating these claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate these claims; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, the notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, the notice were untimely or inadequate, the error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), so that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Relevant to the Veteran's claim for service connection for cataracts, February 2007 and April 2007 letters, sent prior to the initial unfavorable decision issued in April 2007, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, to include on a secondary basis, as well as his and VA's respective responsibilities in obtaining such evidence and information. Likewise, as pertaining to his claim for a TDIU, a January 2008 letter, sent prior to the initial unfavorable decision issued in April 2008, advised the Veteran of the evidence and information necessary to substantiate his TDIU claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, all three letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Therefore, the Veteran has received all required notice concerning these claims. Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a notice error in timing or content and, moreover, above and beyond this, that it is unduly prejudicial - meaning outcome determinative of his claims. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his service treatment records (STRs) and extensive VA medical records through March 2013, and arranged for VA compensation examinations and medical opinions regarding the claims. The Board notes that, in an April 2013 communication, the Veteran requested that all of his VA treatment records dated from January 1, 2012, through the present be considered in rendering a decision as he had significant medical intervention during such period. The Board observes that, as indicated in the Introduction, VA treatment records dated through March 2013 are associated with his Virtual VA file. The Board again notes that such fail to address the Veteran's bilateral eye disorder. Moreover, the Veteran merely reported ongoing treatment for his medical conditions and did not indicate that such records contain an opinion linking his bilateral eye disorder to service, or a service-connected disability. In this regard, there is no dispute that the Veteran has a currently diagnosed eye disorder, rather, the issue turns on the relationship between such and his military service and/or residuals of TBI. Therefore, such records are irrelevant to the issue and need not be obtained. Furthermore, as the Board herein grants a TDIU effective September 8, 2011, there is no prejudice to him in the Board proceeding with a decision without obtaining the additional VA treatment records. The Veteran also testified in support of his claims at a December 2009 hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is on file. 38 C.F.R. § 20.704(a). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the December 2009 hearing, the undersigned explained the issues on appeal and solicited evidence regarding the Veteran's traumatic head injury in service, the onset and nature of his vision deficits, and how they were associated with the head injury. The undersigned also solicited evidence regarding the Veteran's last employment and the impact of his service-connected disabilities on his current employment capacity. The undersigned discussed potential sources of additional evidence from his last employer, private and VA medical providers, and the Social Security Administration. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, as the hearing discussion revealed additional evidence that might be available, the Board remanded the case in August 2010 and August 2012 so that this evidence could be obtained. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Additionally, there are reports of examination and medical nexus opinions on file addressing the etiology of the Veteran's claimed eye disability and limitations in capacity for substantially gainful employment because of service-connected disabilities pursuant to the Board's August 2010 and August 2012 remands. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Veteran's representative argued in his June 2012 Informal Hearing Presentation that the examiners failed to provide sufficient rationale for their opinions; however, he did not specify which examiner or the way in which the rationale was deficient. Moreover, the Board remanded the case in August 2012 to obtain an addendum opinion regarding the etiology of the Veteran's eye disorder. Therefore, the Board finds that these examinations and opinions are adequate, as the examiners considered the medical evidence of record as well as the Veteran's statements in proffering their opinions, which included clear conclusions and supporting data with a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Veteran's representative's argument is without merit and VA has complied with its duty to assist in obtaining adequate medical opinions. In response to the Veteran's statements in 1999 that he had previously applied for disability benefits from the Social Security Administration (SSA), the RO attempted to obtain his SSA records. By a statement dated in September 2008, the SSA informed VA that such records were unavailable as they had been destroyed. Moreover, the December 2009 Board hearing, the Veteran stated that he was receiving SSA retirement benefits based on his age. Therefore, the Board finds that VA has fulfilled its duty to assist in this regard. There also was compliance with the Board's August 2010 and August 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (indicating there need only be "substantial," not "exact", compliance); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this regard, the Veteran's claims were remanded in order to provide him an opportunity to identify all outstanding treatment records, obtain updated VA treatment records, request that the Veteran complete a new Application for Increased Compensation Based on Unemployability (VA Form 21-8940), and obtain information from his former employer, Earnest Investments LLC Trucking and Construction. As indicated previously, updated VA treatment records dated through March 2013 were associated with his Virtual VA file and he was afforded VA examinations and opinions. He also submitted an updated VA Form 21-8940 in September 2012. Moreover, the Veteran was provided numerous letters requesting that he identify any outstanding treatment records. Likewise, as Earnest Investments LLC Trucking and Construction indicated in June 2009 and July 2009 that they had no records pertaining to the Veteran and, if he had worked there prior to 1998, the records were held by Martin Marietta, he was provided with VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) in August 2010 and April 2011 and was requested to forward them to Martin Marietta. However, no response from the Veteran, or Martin Marietta, has been received. Therefore, the Board finds that the AOJ has substantially complied with the August 2010 and August 2012 directives such that no further action is necessary in this regard. See D'Aries, supra. The Board concludes that all the available records and medical evidence have been obtained in order to make a determination as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Legal Criteria and Analysis The Veteran served as a U.S. Army combat and construction engineer with service in Alaska, Korea, and the Republic of Vietnam. He retired at the rank of Staff Sergeant. The Veteran reportedly sustained an injury to the top of his head in combat in July 1968 while seeking cover under a truck during a mortar attack. The Veteran has been granted service connection for residuals of a traumatic brain injury and for residuals of cold weather injuries to the bilateral upper and lower extrenities. He contends that he experiences an eye disorder and reduced visual acuity as a consequence of the traumatic brain injury. He contends that he is unable to procure or follow a substantially gainful employment because of his service-connected disabilities. A. Service Connection Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Eye or vision disorders are not among those disorders listed as chronic diseases for this presumption. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, as the Veteran does not have a current diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is inapplicable. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006); 38 C.F.R. § 3.310(b). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it is in regard to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service treatment records showed that the Veteran served in Alaska in approximately 1965-66. In an August 1966 reenlistment physical examination, visual acuity was measured as 20/20. The Veteran denied any eye trouble. Service treatment records do not show any immediate treatment for a head injury in 1968. In February 1969, the Veteran sought treatment at a battalion aid station for recurrent headaches that he had been experiencing since a head injury seven months earlier. The Veteran was treated on many occasions throughout the remainder of his active service including at a military hospital in 1970. However, the records are silent for any symptoms of abnormal vision or organic eye damage or disease. In a periodic physical examination in July 1969, distant and near vision was measured as 20/20 in both eyes. The Veteran denied any eye trouble and the examiner noted no eye or vision abnormalities. After retirement from active service in May 1975, a VA examiner noted that the Veteran's only complaint was headaches. On examination, there was no abnormal eye movement, and the pupils were within normal limits with no edema and no hemorrhages of the fundi. Distant and near vision was 20/20 in each eye with no reports by the Veteran or observations by the examiner of any vision deficit or organic eye disorder including cataracts. In a December 1981 VA examination, the Veteran's vision was measured as 20/70 and 20/40 on the right and left respectively. The physician recommended an eye examination but did not note any deficiencies other than the refractive error. The Veteran continued to receive periodic VA treatment for headaches. In February 1999, a VA examiner assessed the Veteran's headache symptoms. Pupils were equal and reactive to light with full visual fields and extraocular movement. There is no record of a VA vision examination in the 1980s or 1990s. Records of VA outpatient treatment through 2005 showed that the Veteran sustained at least two more head injuries but attending clinicians noted no vision complaints. Multiple examiners noted that the Veteran experienced watery eyes during a headache episode but no symptoms of diplopia. In October 2006, the Veteran sought vision testing at a VA clinic for symptoms of decreased visual acuity. A clinician noted the Veteran's report of the head injury in service and poor vision since that time but also noted that the Veteran was a poor historian and that it was uncertain whether he sustained any eye injury. Uncorrected vision was measured as 20/50 and 20/30, correctable to 20/40 and 20/25 on the right and left respectively. The clinician diagnosed presbyopia. Because the Veteran's eyes were not dilated at that time, the clinician scheduled an additional examination. In December 2006, a VA optometrist performed the dilated examination. The optometrist noted bilateral cataracts. Interocular pressures were normal with no other deficits and no changes to the refraction correction. In the December 2009 Board hearing, the Veteran stated that he recently bumped his head on an object that was actually closer to him than it visually appeared. The Veteran reported that his cataracts first manifested while he was in service in Alaska and that he currently had difficulty reading. In August 2010, the Board remanded the claim in part to obtain a VA eye and vision examination. At a September 2010 VA eye examination, the Veteran reported for the first time to examiners that he had trouble with depth perception since the head injury in 1968 but that corrective lenses were helpful. The examiner noted that a measurement of visual acuity obtained after the injury during service was 20/20. On examination, corrected vision was 20/40. He noted that the Veteran's cataracts were age-related and not caused by a head injury. In a neurological examination the same month, the examiner reviewed all potential residuals of the head injury and noted that the Veteran needed eyeglasses but had a satisfactory correction. In a December 2010 VA eye examination, the same VA examiner noted a review of the claims file including the service treatment records. He again noted that the Veteran's cataracts were age-related and not caused by his 1968 head injury. The examiner did not offer an opinion whether the head injury aggravated the cataracts. In April 2011, the Veteran underwent a VA examination for residuals of a traumatic brain injury. The VA physician noted a review of the claims file and accurately summarized the reported circumstances of the injury and follow-up treatment for headaches, dizzy spells, and fainting. The Veteran reported that he currently experienced recurrent headaches and dizzy spells but that his vision was good, although he had difficulty estimating distances. The physician noted that his visual-spatial orientation was good. Funduscopic examination showed sharp disk margins with good physiological cuffing. Extraocular muscles had a full range of motion without nystagmus or loss of visual field. The physician noted that the Veteran was able to drive an automobile to and from the examination. In August 2012, the Board again remanded the claim for the 2010 VA examiner to assess the cataract disability on the basis of aggravation. In an October 2012 addendum, the examiner again noted that the cataracts were caused by age and not the head injury in service and were not aggravated by the injury but rather showed a natural progression. In February 2013, the Veteran underwent another VA examination to assess the residuals of the traumatic brain injury. A portion of the examination assessed visual spatial orientation. The examining physician noted that the Veteran had normal visual spatial orientation including judging relative distance of objects. The Board concludes that service connection for a bilateral eye disorder, to include cataracts of both eyes, on a direct basis or as secondary to service-connected residuals of a TBI is not warranted because he did not have a refractive error of the eyes in service and there is no evidence of an additional disability of the eyes superimposed on such refractive error, to include bilateral cataracts, that is related to military service. Furthermore, his bilateral cataracts first manifested after service, are not causally or etiologically related to any disease, injury, or incident in service, and are not caused or aggravated by his service-connected TBI residuals. The Veteran is competent to report on his perceived vision deficits and his recent reports of difficulty reading and judging distances are credible. However, his report that the deficits first began while stationed in Alaska are not credible as they are inconsistent with normal vision shown in measurements in a physical examination in 1966, in 1969 after his head injury, and again in a VA examination in 1975. At these times, the Veteran denied or did not report eye or vision difficulties. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Additionally, although the Veteran's reports of current difficulty judging distances are credible, the Board assigns less probative weight to the implication that the difficulty is caused by visual acuity deficits. Spatial orientation was found by examiners to be normal and abnormalities in depth perception were not noted during eye examinations. Even if the decrease in depth perception is present, the only visual deficits found during examinations are cataracts and refractive error. Further, problems with spatial orientation are a component feature of residuals of a traumatic brain injury for which the Veteran is already service-connected. The earliest notation in the treatment records of refractive error was in 1981, many years after service. Refractive error is considered a developmental defect. Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). However, in the instant case, the Veteran did not have a refractive error of the eyes in service and there is no evidence of an additional disability of the eyes superimposed on such refractive error, to include bilateral cataracts, that is related to military service. In this regard, the first diagnosis of such was in 1981, many years after his service discharge in May 1974. Moreover, it does not appear that the Veteran received corrective lenses in 1981 or for many years thereafter until seeking examination in 2006 when cataracts were noted for the first time. Specifically, the VA clinician diagnosed presbyopia and provided corrective lenses that improved visual acuity to a degree just short of normal. The Board places greatest probative weight on the conclusions of the VA physician in 2010 and 2012. The examiner noted awareness of the circumstances of the injury and the timing of the onset of refractive error and cataracts and concluded that the cataracts were associated with advanced age and not caused or aggravated by the head injury. As he offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board assigns great probative value to the VA examiner's opinion regarding the etiology of the Veteran's bilateral eye disorder. See Nieves- Rodriguez, supra; Stefl, supra. The Veteran has also offered his opinion indicating that his bilateral eye disorder is due to service or has been caused or aggravated by his residuals of a TBI. However, the question of causation and aggravation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral eye disorder. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. B. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The issue is whether the Veteran's service connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The record must reflect some factor, which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). VA has defined "substantially gainful employment" in the Adjudication and Procedural Manual as "employment at which nondisabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See M21-1 MR IV.ii.2.F.24.d. (formerly Manual M21-1, Part VI, Section 7.09(7)). Additionally, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. §4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist on a facts found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. The grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16 based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994); VAOPGCPREC. 6-96 (1996). This means that the Board should take into account the Veteran's specific circumstances including his disability, his education, and his employment history when determining if he is unable to work. The Veteran has the following service-connected disabilities: residuals of a traumatic brain injury rated as 50 percent disabling prior to September 2011 and 70 percent thereafter; residuals of cold injuries to the bilateral lower extremities, each rated as 30 percent disabling; and residuals of cold injuries of the bilateral upper extremities, each rated as 20 percent disabling. The combined rating is 90 percent, effective August 15, 2007. Therefore, the minimum schedular criteria for a TDIU are met for the duration of the appeal period. In this regard, the Veteran's claim for a TDIU was received in November 2007. The Veteran has the following non-service-connected disabilities or disorders noted on rating records and in VA primary care records: cervical spine disease with radiculopathy and neuropathy, cataracts, diabetes mellitus, infectious hepatitis, bilateral carpal tunnel syndrome, peripheral neuropathy of the bilateral lower extremities, mood disorder, recurrent low back strain, and a history of shoulder surgery. Service personnel records show that the Veteran earned a high school diploma, successfully served in Army engineering and armored units, and was promoted to the rank of Staff Sergeant. Various documents in the record show that after service the Veteran worked on loading docks, in construction, and as a forklift truck operator. In some positions, he performed the duties of a team supervisor. VA outpatient treatment records showed that the Veteran stopped full time work in construction in November 1998 because of migraine headaches that caused watering eyes. In May 2002, a clinician noted the Veteran's report of working in recycling of scrap metal although there is no indication that the work was full time or substantially gainful. The RO received the Veteran's claim for a TDIU in November 2007. In a January 2008 statement, the Veteran reported that he occasionally needed crutches for mobility and that he had been fired at his last job in the 1990s after mishandling a forklift. The same month, a VA examiner noted a review of the claims file and the Veteran's report of treatment for cold injuries to the hands and feet in Alaska. The Veteran reported that in cold weather he experiences pain in the hands and feet. The extremities turn white until re-warmed. On examination, the physician noted thickened and dry skin and warmth of both hands and the right foot but coolness of the left foot. There was a full range of motion of the hands and fingers although the physician noted a history of diagnosis of carpal tunnel syndrome not associated with cold injury. There was a fungal infection of the toenails. There were no sensory or reflex deficits. The physician did not indicate that these symptoms impaired mobility or hand function. In April 2008 the RO granted service connection and the ratings noted above for cold sensitivity, pain, thickened skin, and fungal infection of the nails. In an April 2009 mental health examination, the Veteran reported that he performs volunteer activities at his church and at a Veteran's organization. He cares for four horses but rarely rides them and hires others to perform yard work. In a May 2009 brain injury examination, a VA physician noted the Veteran's reports of five headaches per month lasting up to an hour and occasionally causing nausea, dizziness, and vomiting. He used a cane for mobility and had some nerve damage of the hands. The physician diagnosed minimal traumatic brain injury manifestations primarily as headache, confusion, disorientation, and balance problems. There was no cognitive impairment or mental health symptoms separate from those associated with the brain injury. In subsequent outpatient visits and mental health examinations, the Veteran reported that on occasion he lacked energy and stayed in bed all day but on other days he was busy gardening and driving for recreation with distance limited only by hand pain. In a December 2009 Board hearing, the Veteran stated that he experienced some morning disorientation such that he does not perform his chores efficiently and places shoes on the wrong feet or dons clothing inside out. He further stated that he inadvertently strikes his head on objects because of a lack of depth perception. The Veteran reported that he raised a small number of horses for sale to obtain some income. In April 2011, the same VA physician who performed the May 2009 examination again evaluated the residuals of the traumatic brain injury. The physician noted the Veteran's reports of substantially the same symptoms that he believed had become more severe including some episodes of syncope. However, the physician noted that the morning confusion and disorientation resolved spontaneously with being up and around and that headaches occurred at about the same frequency and severity and resolved spontaneously. The Veteran was able to walk with a cane but had no problems with socialization and frequently ate at restaurants. All cognitive factors were normal with good memory, concentration, attention span, communication skills, and executive functions. The physician diagnosed the syncope episodes as vasovagal reactions and concluded that the increased symptoms were part of the aging process because residual traumatic brain injury symptoms should not get worse after many years. The physician concluded that the service-connected disabilities do not preclude gainful employment. On September 8, 2011, a VA neuropsychologist noted a review of unspecified medical records and many neuropsychological and imaging tests performed in 2007, 2009 and three days earlier but not the entire claims file. The psychologist noted that the Veteran continue to live independently, managing his affairs and medications and driving his automobile. On recent clinical encounters, his depression had been well-controlled other than some mild irritability, which had improved with medication. The Veteran reported that he stayed busy by planting a garden, selling scrap metal, and attending a horse riding club. The Veteran was irritable about the delay in granting his total disability claim. On examination, the psychologist noted that the Veteran was a good historian who was able to articulate ample details about himself. The psychologist note no aberrant movements and a bright affect with euthymic mood. Cognitive efficiency was moderately to severely impaired but with only mildly impaired response inhibition. Untimed auditory verbal attention span was moderately impaired with relatively lower working memory. Visual tracking and motor response speed was average, however, when a cognitive component was added he was too confused to continue and the measure was discontinued. Scores from the geriatric depression scale indicated no significant symptoms of depression but severe levels of anxiety-related symptoms. The examiner concluded that the Veteran was experiencing mild to moderate frontal/subcortical cognitive deficits, particularly in the areas of attention, working memory, cognitive flexibility, visual organization, verbal fluency, attention, processing speed, and learning and retrieval of information. There were no indications of rapid loss of information as is typically seen in patients with Alzheimer's disease. In addition to his cognitive problems, the Veteran did experience significant anxiety. The examiner opined that his pattern of cognitive deficits is consistent with his history of multiple chronic medical problems and past and ongoing alcohol use. This was further supported by positive neuroimaging. The diagnoses were cognitive disorder NOS, anxiety, multiple medical problems, and past alcohol abuse. The psychologist concluded that the Veteran's family should assist in medication management and that it was unsafe for him to continue driving. He further concluded that the Veteran should stay active but receive assistance in making important decisions about personal and medical affairs. In August 2012, the Board granted an increased rating of 70 percent for residuals of a traumatic brain injury, effective September 8, 2011, the date of the VA neuropsychologist's examination. The Board noted that some of the recent medical evidence attributed the Veteran's declining cognitive abilities to aging. However, resolving reasonable doubt in the Veteran's favor and effective from September 8, 2011, the Board assigned a level of severity of "3" for the memory, attention, concentration, executive functions facet, based on the finding in the VA neuropsychological assessment in September 2011 of mild to moderate frontal/subcortical cognitive deficits. Although only mild impairment was shown in this facet on TBI examination in September 2010 and April 2011, the Board found that a higher degree of impairment was shown in September 2011. This facet encompasses the Veteran's current anxiety symptoms. 38 C.F.R. § 4.130 Diagnostic Code 8045 (2012). The Board remanded the claim for a TDIU in part to obtain a fully completed Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), current private and VA treatment records, and readjudication of the claim for TDIU in view of the status of individual service-connection claims and ratings. In September 2012, the Veteran submitted another VA Form 21-8940. As in previous submissions, the Veteran noted that he had last worked in the 1990s. Misunderstanding the instructions in Part 16, he noted that he had not worked in the last five years rather than supplying the name and address of his employer for the last five years that he had worked. The Board concludes that the absence of this information is not prejudicial to adjudication of the claim because the Veteran had previously identified the employer, and the RO received a response from the employer in June 2009 and July 2009 that no employment records were available. Additional VA treatment records were obtained and associated with the Virtual VA electronic file. In February 2013, the Veteran was again examined by the VA physician who performed the May 2009 and April 2011 examinations. The examination was performed while the Veteran was receiving inpatient rehabilitation and therapy treatment following cervical spine surgery. The physician noted a review of the claims file and electronic records. The physician noted the Veteran's symptoms of arthralgia of hands and arthralgia, cold sensitivity, numbness, and nail abnormalities of both feet. He referred to X-rays obtained in 2012 that showed osteoarthritis of the bilateral hands and feet. The physician noted that the Veteran formerly used crutches because of non-service-connected knee disorders and currently used a walker because of his cervical spine surgery. He concluded that the cold injuries do not affect employability. The same month, a VA neurologist also noted a review of the claims file and assessed the residuals of the traumatic brain injury. The neurologist noted no residuals of the brain injury including no impairment of memory, attention span, concentration or executive functions, and no neurobehavioral effects. The neurologist cited the neuropsychological testing in 2007 and 2011 and imaging studies in 2012 but commented only that mild to moderate diffuse abnormalities had improved. He noted that memory abnormalities are not normally seen in traumatic brain injuries and that the Veteran's current headaches stopped when he ceased alcohol use. The neurologist did not otherwise comment on the severe residuals noted by the neuropsychologist in September 2011. He concluded that there was no impact on his ability to work. The Board concludes that a total rating based on individual unemployability is warranted, effective September 8, 2011 because there is relatively equal weight of competent and credible evidence both for and against a total rating effective that date. Although the Veteran has been assigned ratings of 30 and 20 percent for cold injuries to his feet and hands, the symptoms of pain, cold sensitivity, and nail abnormalities have not imposed restrictions on mobility. Prior to the Veteran's recent non-service-connected spinal surgery, the Veteran reportedly used support devices for knee disorders. Hand dexterity limitations were also imposed by non-service-connected carpal tunnel syndrome. The Veteran was physically active. He lived independently, raising horses, cultivating a large garden, driving an automobile, and participating in volunteer activities outside the home. His current confinement to a wheelchair is the result of cervical spine surgery and subsequent physical therapy and not caused by cold injuries. None of the cold injury clinical observations and examinations suggests a level of restricted mobility that would impair substantial gainful employment at any time during the period covered by this appeal because of the residuals of the cold injuries. There are substantial conflicts in the competent medical evidence regarding the residuals of the traumatic brain injury. On three occasions in May 2009, April 2011, and February 2013, the VA neurologist noted minimal traumatic brain injury manifestations including mild to moderate headache, confusion, disorientation, and balance problems. There was no cognitive impairment or mental health symptoms separate from those associated with the brain injury. In the latter examination, the neurologist found that the Veteran's cognitive and executive functions had improved. The Board places probative weight on these observations and conclusions as well as on the Veteran's lay statement of his symptoms. The severity of the headaches, mild morning confusion, and occasional dizziness or syncope did not interfere with his active lifestyle, his ability to drive a car, leave the home, or engage in income producing activities. Even though the activities were not substantially gainful, the limitations did not persist throughout the day so as to preclude full time occupational activities. Although the neurologist reviewed the entire file and had the opportunity for multiple examinations over an extended period of time, he did not perform extensive testing and did not comment on the testing and evaluations that were performed by the neuropsychologist in September 2011. Moreover, the exclusion of memory symptoms from a brain injury diagnosis is not consistent with the Diagnostic Code 8045 rating criteria. The Board must also assign probative weight to the September 2011 consultation report. The Board previously assigned significant weight to the report when granting an increased rating for the residuals of the traumatic brain injury. Although the examiner did not acknowledge a review of the entire record, the examiner did accurately note the Veteran's history of injury and current level of activity. Nevertheless, based on test results, the psychologist noted moderate to severely impaired cognitive efficiency with lowered attention span and working memory. The psychologist also noted severe anxiety symptoms. In the absence of a diagnosed mental health disorder, the psychologist associated the symptoms with the brain injury. Most significantly, the psychologist found the Veteran unsafe to drive and that he required assistance in management of his medication and personal affairs. The Board places greatest probative weight on this assessment that indicates an overall impairment of cognitive and executive functions that preclude all forms of substantially gainful employment. Without the capacity to safely operate a vehicle or make medication and financial management decisions, the likelihood of success at any form of employment is very low. The Board acknowledges the indications of recent and seemingly dramatic degradation in cognition observed in September 2011 and the seemingly dramatic improvement noted in February 2013. The Board concludes that a TDIU prior to September 8, 2011 is not warranted because the combined impact of cold injury symptoms and cognitive impairment did not preclude all forms of substantially gainful employment. The Veteran was able to lead an active life and perform income generating activities that showed a capacity for full time work consistent with his experience and education. The Board concludes that a TDIU is warranted, effective on September 8, 2011 because of the moderate to severe limitations of cognition and executive function that precluded activities such as operating a vehicle and managing medication and personal affairs. The Board considered that the Veteran had been under close, inpatient care and supervision for more than six months at the time of the February 2013 assessment. It is not clear that the improvement would be sustained after discharge from the facility back to independent living. Therefore, as there is considerable competent and credible lay and medical evidence both for and against the claim, and resolving all doubt in favor of the Veteran, the Board grants a TDIU, effective September 8, 2011. ORDER Service connection for a bilateral eye disorder, to include cataracts of both eyes, is denied. As of September 8, 2011, but no earlier, a TDIU is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs