Citation Nr: 21004022 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 14-10 228 DATE: January 25, 2021 ORDER Entitlement to service connection for a left eye disability is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disabilities is remanded. FINDING OF FACT The probative evidence of record demonstrates that the Veteran’s left eye disability did not originate in service or for many years thereafter, is not related to any incidents during active service and is not proximately due or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for a left eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1978 to February 1981 and from July 1983 to April 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board (video conference hearing) in September 2020. A transcript of that hearing has been associated with the claims file. Service Connection 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 may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Refractive errors, including astigmatism, myopia, hyperopia, and presbyopia, are considered congenital defects. Generally, congenital defects are not diseases for VA compensation purposes. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Winn v. Brown, 8 Vet. App. 510, 516 (1996). In the absence of a superimposed disease or injury, service connection may not be allowed for congenital defects or refractive errors of the eyes, even if visual acuity decreased in service, as these are not diseases or injuries within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for either a congenital defect or a refractive error of the eye unless such a defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 1990) (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). 1. Entitlement to service connection for a left eye disability The Veteran asserts that his left eye disability, which he characterized as left eye pain and pressure in the September 2020 videoconference hearing, is proximately due to or aggravated by his service-connected hypertension. The Board concludes that, while the Veteran is service-connected for hypertension and has various diagnoses of eye disabilities, the preponderance of the evidence is against finding that any diagnosed left eye disability began during active service, or was otherwise related to an in-service injury, event, or disease and the preponderance of the evidence is against finding that any left eye disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. §§ 3.303, 3.310(a). The Veteran has current diagnoses of blurred vision secondary to myopia, astigmatism and presbyopia, initially diagnosed in a March 2005 VA outpatient treatment report. He also has diagnoses of glaucoma, macular degeneration and incipient cataracts, diagnosed in subsequent VA outpatient treatment reports. The Board observes that the Veteran’s diagnoses of blurred vision due to myopia, astigmatism and presbyopia are congenital defects and thus, do not qualify as a disease for VA compensation purposes. 38 C.F.R. § 3.303 (c); see also 38 C.F.R. § 4.9; Winn, 8 Vet. App. 510. Service treatment records (STRs) are absent of any complaints, findings or treatment for eye problems. The February 1994 separation examination found no abnormalities of the eyes and the Veteran reported no history of eye problems in the February 1994 Report of Medical History. The probative evidence of record does not demonstrate either a causal relationship between any current left eye disability and the Veteran’s active service or any left eye disability was proximately due to, the result of or was aggravated by service-connected disabilities, including hypertension. The post-service medical evidence, including private and VA medical records, demonstrates the initial complaints, treatment and findings of left eye disabilities began many years after the Veteran’s separation from active service. In a March 2006 VA examination, a physical examination of the eyes revealed normal findings. In an October 2010 VA examination, the Veteran reported that he was told a few months ago by his ophthalmologist that he had macular disease of the left eye. At that time, a fundoscopic examination of the left eye revealed findings within normal limits. The Board observes the Veteran testified in the September 2020 video conference hearing that his private physician told him his left eye disability is caused by his service-connected hypertension and he is competent to report his physician’s statements. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Although he is competent to report the treatment which he received, these statements are not credible as they are in conflict with medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, the Board observes the medical evidence of record, including VA outpatient treatment reports and VA examinations, do not reflect any findings of left eye problems as residuals of the Veteran’s hypertension and VA eye examinations during the period of the appeal do not demonstrate any left eye problems are related to hypertension. Consequently, the Board gives more probative weight to the evidence outlined above. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for service connection for a left eye disability, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Veteran’s claim for service connection for a left eye disability is denied. REASONS FOR REMAND 1. Right Knee, Left Knee and TDIU Since the last December 2019 VA examination, the Veteran testified in the September 2020 video conference hearing testimony that his right and left knee disabilities have gotten worse since that time. Therefore, it is necessary to adequately determine the current severity of the Veteran’s right and left knees and the functional effects of such disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPCGPREC 11-95 (April 7, 1995); see also 38 C.F.R. § 3.327. In this case, the Veteran does not meet the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). The Board’s remand for a VA examination for the bilateral knees, however, may affect the outcome of the issue of entitlement to TDIU. Accordingly, the Board will defer a decision pending further consideration by the Agency of Original Jurisdiction (AOJ). See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Upon receipt of all additional records, schedule the Veteran for a VA examination of his right and left knees. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of the right knee and left knee should consist of all necessary testing. To the extent possible, the examiner should identify any functional effects and functional impairment of the Veteran's right knee and left knee on his occupational functioning, daily life, and ordinary activities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. 3. Following examination of the Veteran’s right and left knees, and after any additional development that may be indicated, adjudicate the issue of entitlement to TDIU. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.