Citation Nr: 18140052 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-10 129 DATE: October 2, 2018 ORDER Service connection for a right eye disorder is denied. A rating in excess of 30 percent for left eye vision loss is denied. FINDINGS OF FACT 1. The Veteran’s right eye disorders did not have onset during service, and are not otherwise related to service. Nor were they caused or aggravated by his service-connected left eye vision loss. 2. The Veteran’s left eye vision loss results in perception of light only. Service connection is not in effect for a right eye disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for right eye disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.9. 2. The criteria for a rating in excess of 30 percent for left eye vision loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.75, 4.79, Diagnostic Code (DC) 6064. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1956 to November 1957. This matter is on appeal from an October 2012 rating decision. Additional evidence, including a December 2016 VA eye examination, was added to the claims file after the issuance of the most recent supplemental statement of the case (SSOC) in July 2016. In August 2018, the Veteran waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for a right eye disorder. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Refractive errors of the eye are diseases or injuries for which service connection cannot be granted. See 38 C.F.R. §§ 3.303(c), 4.9. See also O’Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (refractive error of the eye is not a compensable disease because it is specifically excluded from the regulation even though refractive errors of the eye can progress) (citing Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003)). Analysis While on active duty, the Veteran fell while carrying a piece of pipe. The pipe hit him above the left eye, causing a laceration. He is already service connected for the vision loss in his left eye (as due to injury). The Veteran contends that he also has a right eye disorder due to the injury, or as secondary to his service-connected left eye disorder. Before service, the Veteran’s vision was 20/20 bilaterally. After the injury, the visual acuity in the left eye was 20/200 and 20/50 in the right eye. By the time the Veteran separated from service, visual acuity was 20/200 in the left eye and 20/15 in the right eye. The fundi of the left eye showed extensive scarring in the macular region, but the right fundus was normal. Currently, the Veteran cannot recognize test letters at 1 foot or closer in the left eye as a result of that injury. Examinations show varying results for right eye visual acuity. The October 2012 examination shows uncorrected near and distance vision as 20/70, both of which are 20/50. The December 2016 examinations show near and distance visual acuity in the right eye to be 20/70 with correction to 20/40 or better. The April 2015 examination shows similar results, except that right eye uncorrected near vision was measured as 20/50. Goldmann Perimetry testing also shows that the Veteran has a visual field defect in the right eye. The Veteran also has several other currently diagnosed ocular diseases—bilateral senile cataracts; pseudophakia in the right eye; atrophic nasal pterygium on the cornea measuring 1.7 millimeters on the right eye; dry eye; blepharitis; and pinguecula in the left eye. The Veteran has had cataracts removed from the right eye with a replacement intraocular lens. The Veteran has also stated that he has burning and tearing of the eyes, mostly in the afternoons. In conjunction with the October 2012 VA examination, a medical opinion was obtained. The examiner opined that the right eye vision loss is due to age-related senile cataract and refractive error rather than the left eye disability, as he did not suffer any trauma to the right eye. In April 2015, a VA examiner noted that the Veteran’s vision loss in the right eye is due to refractive error, which is considered a congenital defect. She distinguished between the Veteran’s senile cataracts that develops with age and traumatic cataracts which would have developed shortly after the traumatic injury. As a result, she opined that the Veteran’s right eye disorder was less likely than not related to service. Another opinion was obtained in conjunction with the June 2016 VA examination. At that time, the examiner again stated that it was less likely than not that the Veteran’s right eye disorder was caused or aggravated by his left eye disability. Rather, the right eye disorders were due to cataract and refractive error as no trauma or traumatic maculopathy occurred in the right eye. In July 2017, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) because the opinions of record did not address the Veteran’s visual field impairment or address each of the Veteran’s diagnoses. The Board received a September 2017 opinion by a staff ophthalmologist at a VA Medical Center. The ophthalmologist is also an associate professor at a nationally recognized medical school. Thus, the author has great expertise in this area of medicine. The ophthalmologist noted the Veteran’s 1) right eye psuedophakia, 2) atrophic nasal pterygium, 3) blepharitis and dry eye, 4) cataracts. The ophthalmologist opined that it was very unlikely that the Veteran’s current eye disorders were caused or aggravated by his in-service injury and loss of vision in the left eye. He noted that the Veteran has not sustained any injury to the right eye. Pterygium was noted as a condition resulting from chronic exposure to environmental elements such as sun and wind and not the old left eye injury. Cataracts, blepharitis, and dry eye were noted as age-related disorders and not the result of old trauma. The above medical opinions are the competent evidence of record as to the etiology of the Veteran’s right eye disorders and their possible link to either the in-service injury or to service-connected eyed disorder. The September 2017 VHA opinion is the most persuasive as expert explained the etiology of each diagnosed right eye disorder. This contemplates all of the Veteran’s current right eye symptomatology. Further, the examiner noted that the disorders were “very unlikely” caused or aggravated by “remote trauma and vision loss in the left eye.” This persuasive opinion addresses both the direct and secondary service connection theories. Additionally, the opinion is in concert with the prior opinions obtained during the claims process. This collection of medical evidence outweighs the Veteran’s lay statements and theories for the claim. The evidence of record, including these medical opinions, show that the in-service injury to the left eye did not result in the right eye disorders and the right eye disorders are not traumatic in nature. Moreover, the causes of the right eye disorders are expressly shown to be due to reasons other than the left eye disorder. Furthermore, there is not showing from these opinions that the left eye disorder has any type of aggravating effect on the right eye disorders. As a result, the Board finds that the Veteran’s right eye disorders did not have onset during service, and are not otherwise related to service. Nor were they caused or aggravated by his service-connected left eye vision loss. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and service connection for a right eye disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. A rating in excess of 30 percent for left eye vision loss. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.   Analysis Based on 38 C.F.R. § 4.76(a), the Board is to rate visual acuity based on corrected distance vision, or 20/40 in this case in each eye. Where a Veteran is service connected for only one eye, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Unless there is anatomical loss of the eye, the evaluation of visual impairment of one eye must not excessed 30 percent. 38 C.F.R. § 4.75(d). The Veteran’s claim for an increased rating was received by VA on August 3, 2012. The three VA examinations, conducted in October 2012, April 2015, and June 2016 are the best evidence regarding the severity of the Veteran’s left eye vision loss. At the October 2012 examination, the Veteran was unable to recognize test letters at 1 foot or closer in the left eye. His left eye vision was poorer than 20/200 even with correction. At the June and December 2016 examinations, it was reported that the Veteran had no more than light perception in the left eye. Disabilities resulting in loss of visual acuity are rated under 38 C.F.R. § 4.79, DCs 6061-6066. 38 C.F.R. § 4.79, DC 6064 provides for a 30 percent rating for no more than light perception in one eye, with the better eye being 20/40. Because the Veteran is service connected for only one eye, his other eye is evaluated to be 20/40 for rating purposes. 38 C.F.R. § 4.75(c). Further, a 30 percent rating is the highest available when only one eye is service connected and there is not anatomic loss of an eye. 38 C.F.R. § 4.75(d). Therefore, a rating in excess of 30 percent is not warranted. The Board notes that the Veteran’s right eye vision is shown to be normal when corrected. Thus, the provisions of 38 C.F.R. § 3.383(a)(1) for special consideration for paired organs and extremities. Additionally, although the rating criteria for evaluating eye disorders were partially amended effective May 13, 2018, the Board does not find that the changes affect the Veteran’s claim as DC 6064 remains identical as do the provisions of 38 C.F.R. § 4.75(d). In sum, the preponderance of the evidence is against the claim for a rating in excess of 30 percent. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, a higher rating is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George