Citation Nr: 18150671 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-45 832 DATE: November 15, 2018 ORDER Entitlement to service connection for bilateral glaucoma, to include as secondary to service-connected diabetes mellitus, type II (hereinafter, “diabetes”), is granted. Entitlement to service connection for bilateral cataracts, to include as secondary to service-connected diabetes, is denied. Entitlement to service connection for a refractive error, to include astigmatism and presbyopia, is denied. Entitlement to a disability rating for diabetes higher than 10 percent prior to September 14, 2015, and higher than 20 percent thereafter, is denied. Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether bilateral glaucoma is due to service-connected diabetes. 2. The preponderance of the evidence of record indicates that bilateral cataracts were not incurred in service, and are not related to service-connected diabetes. 3. Refractive error (including astigmatism and presbyopia) is not a disease or injury for VA compensation purposes. 4. Prior to September 14, 2015, service-connected diabetes was managed with a restricted diet only; however, after September 21, 2015, diabetes was managed by a restricted diet and an oral hypoglycemic agent. At no time during the appellate period has the Veteran’s diabetes required physician-prescribed regulation of activities. 5. For the period on appeal, the Veteran had, at worst, Level II hearing acuity in the right ear, and Level II hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral glaucoma have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2018). 2. The criteria for service connection for bilateral cataracts, to include as secondary to service-connected diabetes, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). 3. The criteria for service connection for a refractive error, to include astigmatism and presbyopia, have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 4.9 (2018). 4. The criteria for a disability rating for diabetes higher than 10 percent prior to September 14, 2015, and higher than 20 percent thereafter, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.119, Diagnostic Code 7913 (2018). 5. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to January 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A direct service connection finding is warranted with: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, entitlement to service connection may be established on a secondary basis to an already service-connected disability. In order to substantiate a claim for secondary service connection, evidence is needed to establish that the non-service-connected current disability is either proximately due to, or the result of, a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Pertinent to this case, the Board notes that service connection may not be granted on a direct basis for refractive error (including hypermetropia, astigmatism, presbyopia, and refractive amblyopia) of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable regulations. See 38 C.F.R. §§ 3.303(c), 4.9; see also Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003). However, service connection may be granted if the refractive error was subject to a superimposed disease or injury. See VAOPGCPREC 82-1990. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran maintains that he is entitled to service connection for bilateral glaucoma, cataracts, and a refractive error to include astigmatism and presbyopia. The Veteran maintains that the glaucoma and cataracts were caused by service-connected diabetes. A review of the medical records associated with the claims file reflects that the Veteran has been diagnosed with bilateral glaucoma, cataracts, and astigmatism and presbyopia; thus, current disabilities for these three claims have been established. Further, the Board notes that while the Veteran reported on his January 1970 separation examination that he had eye trouble, there were no noted eye disabilities in his service treatment records, or upon separation examination. Further, the examiner who conducted the Veteran’s separation examination found that the Veteran’s indication of eye trouble was of no medical significance. On May 2013 VA examination, the Veteran was provided the following diagnoses: primary open angle glaucoma, astigmatism, presbyopia, and nuclear sclerosis. The VA examiner indicated that the Veteran also had pre-operative cataracts in both eyes. Regarding the astigmatism and presbyopia, the examiner indicated that the Veteran sees well with his glasses. Regarding the cataracts, the examiner indicated that the Veteran had mild age-related cataracts in both eyes that were causing a very mild decrease in vision in both eyes. The examiner indicated that the cataracts were likely not caused or aggravated by service-connected diabetes. The examiner came to this conclusion based on the Veteran’s age, type of cataracts diagnosed, and his good vision. Regarding the bilateral glaucoma, the VA examiner opined that the glaucoma was likely not caused by diabetes. The examiner reasoned that because the Veteran had open angle glaucoma, rather than neovascular glaucoma, it was unlikely that diabetes was the cause of the problem. The examiner added that the association between glaucoma and diabetes is controversial. Also of record is an October 2015 letter from the Veteran’s primary care physician who indicated that the Veteran was being treated for open-angle glaucoma and diabetes mellitus. The private physician opined that the Veteran’s open-angle glaucoma was related to the diagnosed diabetes, and reasoned that there were multiple reputable studies showing a significant relationship between diabetes and open-angle glaucoma. Regarding the Veteran’s bilateral glaucoma, the Board finds that the conflicting medical evidence of record at least places the evidence in equipoise as to whether the Veteran’s currently diagnosed bilateral glaucoma was caused by service-connected diabetes. Specifically, the above-discussed October 2015 opinion, with supporting rationale, from the Veteran’s treating physician weighs in favor of granting his claim. Therefore, resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for bilateral glaucoma is granted. Regarding cataracts, the Board finds that a preponderance of the evidence is against the claim. Based on the opinion from the May 2013 VA examiner, the Veteran’s cataracts were most likely caused by age and not diabetes. There are no other opinions of record providing a positive association between cataracts and diabetes. Further, as indicated earlier, there is no evidence of cataracts during service. As such, entitlement to service connection for bilateral cataracts is denied. Similarly, the Board finds that the Veteran is not entitled to service connection for astigmatism or presbyopia. As previously noted, service connection may not be granted on a direct basis for refractive error (to include astigmatism and presbyopia). These are congenital disorders for which service connection may not be granted. 38 C.F.R. §§ 3.303, 4.9. The limited exception to this rule is found in cases in which refractive error is subject to a superimposed disease or injury related to service. There is no evidence of record, nor does the Veteran or his representative contend, that he experienced a superimposed disease or injury during service. Thus, entitlement to service connection for bilateral cataracts and astigmatism and presbyopia is not warranted. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the United States Court of Appeals for Veterans Claims has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Diabetes The Veteran asserts entitlement to an increased rating for diabetes. The disorder was rated 10 percent disabling prior to September 14, 2015, and 20 percent disabling thereafter. During the pendency of the appeal, in an October 2015 rating decision, the RO assigned the 20 percent rating effective September 24, 2015, the date the RO indicated a change in the Veteran’s diabetes treatment was established. As discussed below, the date was intended to be September 14, 2015. Nevertheless, as this was not a full grant of the benefit sought on appeal, the issue has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran’s diabetes has been evaluated under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Under this code, a 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice per month visits to a diabetic care provider, plus complications that would be compensable if separately evaluated. A 100 percent rating requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year, or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, but non-compensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). To demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Id. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 rating)). Of record is a September 2012 diabetes mellitus disability benefits questionnaire completed by the Veteran’s private physician. The Veteran was provided a diagnosis of diabetes mellitus, type II. His treatment plan did not include taking continuous mediation, and was managed by restricted diet only. Regulation of activities as part of medical management of diabetes was not required. He visited his diabetic care provider less than two times per month. He had no episodes of ketoacidosis or hypoglycemia requiring hospitalization in the 12 months prior to the date of examination. There was no progressive unintentional weight loss or loss of strength attributable to diabetes. Further, he was not noted to have any complications as a result of his diabetes. Also of record are the Veteran’s VA out-patient treatment records. A September 14, 2015 notation indicates that the Veteran was recently prescribed an oral hypoglycemic agent to control his diabetes. The Board notes that the RO erroneously indicated that this notation was made on September 24, 2015, rather than September 14, 2015. Further, there are numerous indications in the treatment records, most recently in February 2018, indicating that the Veteran had non-insulin dependent diabetes mellitus, with no diabetic retinopathy. In light of the foregoing, the Board finds that for the period prior to September 14, 2015, a disability rating in excess of 10 percent was not warranted. The medical evidence of record reflects that for this period, the Veteran only required a restricted diet to control his diabetes. 38 C.F.R. § 4.119, DC 7913. However, for the period after September 14, 2015, the Board finds that the Veteran was entitled to a 20 percent disability rating, but no higher. While the evidence reflects that the Veteran was being prescribed an oral hypoglycemic agent to control his diabetes, there was no indication of a physician prescribed regulation of activities. Id. In sum, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent prior to September 14, 2015, and a rating higher than 20 percent thereafter for service-connected diabetes. Bilateral Hearing Loss The Veteran’s service-connected bilateral hearing loss is currently assigned a noncompensable disability rating under the provisions of DC 6100 of the Rating Schedule. See 38 C.F.R. § 4.85. The Board notes that service connection is also in effect for tinnitus with a 10 percent disability rating. Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. See 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Id. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. See 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone if the examiner certifies the use of the speech discrimination test is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. See 38 C.F.R. § 4.85(e). Further, when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The Veteran was examined by a VA audiologist in August 2016. During the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 45 60 70 LEFT 15 25 55 60 The average puretone thresholds were 48.75 decibels in the right ear and 38.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The Veteran’s hearing loss was noted to impact ordinary conditions of daily life, including ability to work. He reported that it was difficult to hear his wife, he constantly had to ask others to repeat, and he had general difficulty in anything less than an ideal listening situation. The Veteran was provided another VA audiological examination in March 2018. During the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 50 60 70 LEFT 15 25 50 60 The average puretone thresholds were 50 decibels in the right ear and 37.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 84 percent in the left ear. The Veteran’s hearing loss was noted to impact ordinary conditions of daily life, including ability to work. He reported the he must frequently ask others to repeat themselves, which caused great embarrassment when he was still working with the general public. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings, at worst, show Level II hearing acuity in both the left and right ear. The combined numeric designations of Level II and Level II warrant a 0 percent rating under Table VII. 38 C.F.R. § 4.85. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran’s hearing loss has not approximated the criteria for a compensable disability rating for the period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to a compensable disability rating for bilateral hearing loss is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran asserts that he is unable to obtain and maintain gainful employment as a result of his service-connected disabilities. Entitlement to a TDIU was denied in an October 2016 rating decision because the Veteran did not meet the combined disability rating percentage criteria pursuant to 38 C.F.R. § 4.16(a). In the instant decision, the Board grants entitlement to service connection for glaucoma, as secondary to the Veteran’s service-connected diabetes, and once this disability is rated, the Veteran may meet the 38 C.F.R. § 4.16(a) rating criteria. As such, a remand of the TDIU issue is warranted to allow the RO to rate the newly service-connected disability and then readjudicate the TDIU issue. Accordingly, the matter is REMANDED for the following action: 1. Rate the newly-service-connected glaucoma disability. (Continued on the next page)   2. Thereafter, readjudicate the issue of TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel