Citation Nr: 18156978 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-19 348 DATE: December 11, 2018 ORDER Entitlement to service connection for impaired vision is denied. REMANDED Entitlement to nonservice-connected pension is remanded. FINDING OF FACT The Veteran does not have a vision disability that was caused by or otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for impaired vision, diagnosed recently as nuclear sclerosis and glaucoma, have not been met. 38 U.S.C. § 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309, 4.9 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to July 1978. This matter comes to the Board of Veterans’ Appeals (Board) from July 2013 and August 2015 rating decisions. 1. Entitlement to service connection for impaired vision. The Veteran contends that service connection is warranted for impaired vision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (1) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In an October 2011 decision, the Board denied service connection for a left eye disability, claimed as retinopathy, and as due to herbicide agent exposure. At the time, the Veteran had diagnoses of left eye immature cataract, bilateral hypertensive retinopathy, lenticular myopia, and presbyopia. With respect to claim for impaired vision, the Board notes that for purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2017). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including astigmatism, hyperopia, and myopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). The Veteran’s August 1974 entrance examination revealed vision of 20/25 in the right eye and 20/20 in the left eye. The examiner noted a visual defect, but found the Veteran qualified for service. The Veteran’s June 1978 separation examination reflects he complained of having a weak left eye for four years. Testing revealed vision of 20/20 in the right eye and 20/40 in the left eye. The examiner noted defective left eye vision that was not considered disqualifying. The Veteran’s service treatment records are otherwise silent for complaints of or treatment for an eye disability. The Veteran was afforded a VA eye examination in January 2013 in connection with his claim for nonservice-connected pension. The examiner indicated a diagnosis of progressive left eye immature cataract, with normal visual fields and no evidence of diabetic retinopathy. Uncorrected distance in the right eye was 20/40 or better and 20/200 in the left eye. The Veteran was noted to have a left eye cataract of size, density, and location that resulted in left eye blurred vision. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness, astigmatism, diplopia, visual field defect, scarring or disfigurement. Private treatment records reflect diagnoses of bilateral nuclear sclerosis in December 2015 and left eye phacomorphic glaucoma and cataract in August 2017. Here, the Board finds that service connection for impaired vision is not warranted. Although the Veteran was not afforded a VA examination as to whether the recently diagnosed bilateral nuclear sclerosis or left eye glaucoma are related to service, such an examination is not necessary. In determining whether the duty to assist requires that a VA examination be provided or a medical opinion obtained with respect to a Veteran’s claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the second and third factors above, there is no objective medical evidence of record that the Veteran had an event, injury, or disease in service resulting in an eye disability or that the nuclear sclerosis or glaucoma, diagnosed nearly 40 years after separation from service, are etiologically related to the Veteran’s service. Therefore, in this case, no examination is necessary in order to adjudicate the Veteran’s claim of entitlement to service connection for impaired vision. The Board acknowledges the Veteran’s own opinion that his impaired vision is related to service. The Board notes that the Veteran is competent to report that his vision is decreased or blurred. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, refractive errors are not subject to service connection unless it was subject to a superimposed disease or injury. Furthermore, as a lay person, the Veteran is not competent to provide a medical diagnosis or nexus regarding his diagnosed eye disabilities and whether these disabilities are related to service; such a matter requires medical expertise and laboratory testing. See id. at 1377 (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the Board finds the Veteran’s representations in this regard to be of extremely limited probative value. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim for service connection for impaired vision is denied. REASONS FOR REMAND 1. Entitlement to nonservice-connected pension is remanded. The Board finds that further development is needed prior to adjudicating the Veteran’s claim for nonservice-connected pension. While the record contains contemporaneous VA examinations regarding the Veteran’s nonservice-connected lumbar spine degenerative arthritis and bilateral knee disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing, and the examiners did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Furthermore, the last general VA examination to assess all of the Veteran’s disabilities was conducted in 2013. The Veteran should be provided a general medical examination to evaluate all of his disabilities, and the examiner should provide an opinion on the functional impact on employment of each identified condition. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected and nonservice-connected disabilities. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities. When appropriate, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of each disability on any occupational functioning and activities of daily living. If it is not possible to provide an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran, and his representative if one is appointed, should be issued a supplemental statement of the case (SSOC).   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel