Citation Nr: 20048092 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 14-39 168 DATE: July 17, 2020 ORDER Service connection for eye disability, claimed as loss of vision, is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to March 27, 2019, and in of 20 percent therefrom for cervical spine disability is remanded. Entitlement to a total disability rating due to individual unemployability prior to March 27, 2019 is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had an eye disability for VA purposes at any time during or approximate to the pendency of the claim; his current eye symptoms have been attributed to refractive errors and there is no evidence of aggravation or an additional disability of the eyes superimposed on such refractive errors that is related to his military service. CONCLUSION OF LAW The criteria for service connection for eye disability, claimed as vision loss, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to June 1998 in the United States Army. The Veteran has had a 100 percent combined schedular rating since March 27, 2019. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the appeal for additional development. There has been substantially compliance with the Board’s prior remand directives except as otherwise address in the remand portion of this decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). There has been no specific contention or allegation otherwise to address herein. Service connection for eye condition. The Veteran contends that he started losing his vision “at or about 1985.” He noted that he wears corrective lenses today, cannot drive without them, and had trouble seeing far away. He also noted that he received corrective lenses during his active service in 1990. See VA Form 21-4138 (August 2010). 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection is not generally available for refractive error of the eye as it is not a disease or injury within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c), 4.9. Refractive error of the eyes includes myopia, presbyopia, and astigmatism. Id. Further, absent aggravation or superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect of the eyes, 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. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). See also 38 C.F.R. § 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA’s General Counsel issued an opinion interpreting 38 C.F.R. § 3.303(c) to mean that that service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that manifestations of the disease in service constituted “aggravation” of the disease within the meaning of applicable VA regulations. VAOPGCPREC 67-90. The VA General Counsel also has issued an opinion that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current eye disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records (STRs) reflect that he entered service with 30/30 vision and that he had vision checks showing refractive error. A 1998 service separation examination reflects he had refractive error corrected with glasses. See STR-Medical (October 2010); see also STR (August 2010). An April 2011 VA eye examination reflects complaints of vision loss with a history of light sensitivity at night and during the day while in service. The Veteran complained of a history of blurring and photophobia in both eyes, progressively worse since onset. The Veteran reported history of near and far distance visual acuity problems for which he obtained corrective glasses. It was noted that he wears single vision glasses. Presbyopia and refractive error were diagnosed. The examiner noted that the Veteran’s complaint of blurry vison was related to his presbyopia and refractive error; that ocular examination was otherwise normal; and that vision corrects to normal with glasses. The Board acknowledges the the Veteran’s report of light sensitivity to include as reported on April 2011 VA examination during an April 2016 VA ophthalmology visit (report severe sensitivity to light in both eyes, especially at night). However, there is no objective evidence of light sensitivity associated with any eye disability. Notably, a February 2014 VA headaches examinations reveal symptoms of sensitivity to light associated with service-connected migraine headaches. See CAPRI (February 2014). An April 2019 VA eye conditions examination noted the Veteran’s reports of light sensitivity with an onset in 1990, but found the Veteran did not manifest with any eye pathology, aside from presbyopia and refractive error. The examiner found there was no objective indication of photophobia. Vision loss was noted as corrected with glasses. A February 2020 VA examination again noted subjective symptoms of light sensitivity, indicating that this was associated with traumatic brain injury (TBI). The Board accepts that the Veteran is competent to report his vision symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, refractive error is not a disability for VA purposes, and he does not contend, nor does the record suggest, the presence of any superimposed disability. Also, with regard to light sensitivity, the Veteran’s report of such does not constitute a “disability” for VA compensation purposes because neither the lay nor the medical evidence shows that there is any specific functional impairment associated with this. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Furthermore, the symptom is attributed to already service-connected disabilities, which are not before the Board, TBI and migraine. It is noted that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent evidence of a current eye disability for VA purposes, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. A rating in excess of 10 percent prior to March 27, 2019 and in excess of 20 percent therefrom for cervical spine disability is remanded. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The April 2019 VA examination regarding the Veteran’s cervical spine disability does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). See C&P Exam (April, 2019) The examinations do not contain passive range of motion measurements/pain on weight-bearing testing. Additionally, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner noted the Veteran’s reports of flare-ups, current level of pain as 8/10, and noted functional difficulty Her rationale noted “[a]fter review of the Veteran’s records including the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record, and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion during a flare up.” C&P Exam (April, 2019). However, the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups, including frequency, severity, and duration, and any additional functional loss suffered during flare-ups. Therefore, to ensure that VA has met its duty to assist, remand is necessary. 2. Entitlement to TDIU prior to March 27, 2019, is remanded. The matter of TDIU is inextricably intertwined with the claim for increase. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2020 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (a.) Test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). (b.) Attempt to elicit information regarding the severity, frequency, and duration of any cervical spine flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.