Citation Nr: 18143924 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-33 542 DATE: October 23, 2018 ORDER Entitlement to service connection for a bilateral eye disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s bilateral eye disability was incurred in or related to active service. 2. The Veteran does not meet the schedular requirement for TDIU; and the Veteran has not contended, and neither does the record indicate that any of his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral eye disability, to glaucoma and cataracts, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from March 1972 to March 1975, with subsequent Reserve service. This case comes before the Board of Veterans’ Appeals (Board) from August 2013 and April 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a bilateral eye disability The Veteran contends that his current diagnosed primary open angle glaucoma, optic atrophy, and cataracts, had their onset in, or are causally related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran’s service treatment records indicate that he complained in service of blurry vision in February 1974. During the Veteran’s separation examination in January 1975, he reported frequent blackouts of the right eye; however, the examiner indicated that the Veteran’s eyes were normal at separation and did not note a diagnosis of any eye condition. See STR – Medical. The Veteran contends that he was informed by a VA doctor in 1972 that he had a spot in his eye; and that he later received a diagnosis of glaucoma sometime between 1973 to 1975. See VA Form 21-526, dated December 16, 1997; VA Examination, dated February 7, 1998. A VA treatment record from November 1997, indicates that Veteran was first diagnosed with open angle glaucoma 10-15 years prior; approximately 10 years after his separation from service in 1972. See Medical Treatment Record – Government Facility, submitted January 20, 1998. This matter was last before the Board in December 2017, at which time it was remanded to afford the Veteran a VA examination. Accordingly, an examination was conducted in February 2018. The examination was conducted in-person, and the examiner indicated that he reviewed the Veteran’s entire claims file. The examiner confirmed the Veteran’s diagnoses of open angle glaucoma, optic atrophy, and cataracts. The examiner opined that the Veteran’s eye conditions were less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that primary open angle glaucoma is a condition that is inherited, and is therefore not related to service. He further indicated that if a patient does not adhere to prescribed treatment regimens, such as compliance with medication, then glaucoma will result in optic atrophy, cataracts and blindness; as seen here with the Veteran. See C&P Exam, dated February 22, 2018. The Board finds that the February 2018 opinion is highly probative as it was based on a review of the record, diagnostic studies of the eyes, and was based on the VA examiner's own medical expertise. The Board notes the Veteran’s contentions that he was diagnosed with glaucoma during service. However, the medical evidence of record does not show a diagnosis of any eye condition until nearly 10 years after service. Therefore, the lay statements of record are not competent evidence sufficient to establish service connection. For all the above reasons, the preponderance of the evidence is against the Veteran’s claim for service-connection for a bilateral eye condition. Since the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that he is blind in both eyes due to glaucoma, and should therefore be awarded a TDIU. See December 2015 VA Form 21-8940, Veterans’ Application for Increased Compensation Based on Individual Unemployability. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the Veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the claim for a TDIU. A review of the record indicates that service connection is in effect for depressive disorder, rated at 50 percent; tinnitus, rated at 10 percent; and tension headaches, rated at 0 percent. The Veteran’s combined rating is 60 percent. Thus, as the Veteran’s combined rating is not 70 percent or more, he does not meet the schedular requirement to TDIU. In this case, the Board also finds that referral to the Director of Compensation and Pension Service for extra-schedular consideration is not warranted. The Veteran’s sole contention is that his glaucoma has rendered him unable to secure or follow a substantially gainful occupation. While the Board notes that the Veteran is service-connected for multiple disabilities, the Veteran has not contended, and neither does the record indicate that any of his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. Accordingly, considering the denial of service-connection for the Veteran’s bilateral eye condition herein, the Board concludes that the preponderance of the evidence is against the claim of entitlement to TDIU. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel