Citation Nr: 21063858 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 12-04 437 DATE: October 18, 2021 ORDER Service connection for an acquired vision defect, to include as secondary to service-connected diabetes mellitus type II, is denied. Service connection for polyps, to include as due to herbicide exposure, is denied. An effective date of June 6, 2012, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of diabetic retinopathy at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's diagnoses of senile cataracts, senile nuclear sclerosis, blepharitis, macular epiretinal membrane, or pinguecula began during active service, are secondary to a service-connected disability, or are otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the polyps began during active service, or are otherwise related to an in-service injury or disease. 4. The competent evidence of record indicates that the Veteran's service-connected disabilities rendered him unable to sustain gainful employment since June 6, 2012. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired vision defect are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for polyps are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an effective date of June 6, 2012, for the grant of entitlement to a TDIU have been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.155, 3.156, 3.157, 3.159, 3.321, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1968 to April 1970, including service in Vietnam. The Board remanded the issues in June 2017, November 2018, and March 2021 for further development, including obtaining VA treatment records and obtaining VA medical opinions on the etiology of the claimed vision defect and polyps. VA treatment records were subsequently associated with the record and VA medical opinions were obtained in November 2019, December 2020, and April 2021. The Board therefore finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or an injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability also may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disability or if it is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for an acquired vision defect. The Veteran contends that he has had vision loss "since the diabetes condition began." See the May 2020 statement, February 2012 substantive appeal (VA Form 9). For purposes of entitlement to VA benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9; 38 U.S.C. § 1110. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as refractive error of the eyes is not a disease or injury within the meaning of applicable legislation relating to service connection. The Board concludes that the current diagnoses of bilateral pinguecula, bilateral senile nuclear sclerosis (cataracts), blepharitis, and left eye epiretinal membrane did not begin during service and are not otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Furthermore, the diagnoses are not proximately due to or the result of, or aggravated beyond their natural progress by the service-connected diabetes mellitus type II. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Service treatment records (STRs) are silent for any relevant complaints, diagnoses, or treatment. In a January 1968 preinduction examination, the Veteran's eyes were found to be clinically normal, including his pupils, ocular motility, and ophthalmoscopically. His vision was noted to be 20/20 bilaterally and he denied a history of eye trouble. In a March 1970 separation examination, the Veteran's eyes were again found to be clinically normal, including his pupils, ocular motility, and ophthalmoscopically. His vision was noted to be 20/20 bilaterally and he denied a history of eye trouble. In an April 1970 report of medical history, the Veteran again denied having a history of eye trouble. Post-service VA examinations in June 1970 and January 1985 are also silent for mention of any eye or vision complaints or findings. In an October 2009 VA diabetes examination, the Veteran was noted to have been diagnosed with diabetes in August 2009. He also reported having a "progressive loss of vision," and wearing glasses since approximately nine years ago. The examiner indicated that the Veteran had refractive error and a left eye early cataract that was not surgical, and no evidence of diabetic changes. In an October 2012 VA diabetes examination, the Veteran was not found to have any diabetic retinopathy, or any other eye condition due to diabetes. In a May 2014 VA eye conditions examination, the Veteran reported having a "sandy sensation" in both eyes almost daily, and denied any other ocular complaints. He also denied a history of any ocular trauma or surgery. On examination, the Veteran's corrected distance vision was 20/20 bilaterally, and his corrected near vision was 20/30 bilaterally. His pupils were equal in diameter, round, and reactive to light, and there was no afferent pupillary defect present. There was also no anatomical loss, light perception only, extremely poor vision, or blindness. The Veteran did not have severe irregular astigmatism, diplopia (double vision), or visual field defect. The diagnoses were bilateral early senile cataracts, bilateral mild blepharitis, and left eye mild macular epiretinal membrane. The examining surgical service/ophthalmologist indicated that the Veteran's loss of vision was due to the early senile cataracts and refractive error, and his reported symptoms were due to blepharitis. There was no diabetic retinopathy, and the mild macular epiretinal membrane in the left eye was not causing a decrease in visual acuity. The examiner opined that the loss of vision was not secondary to diabetes, the cataracts were expected age-related lens changes in the Veteran who was 65 years old and had excellent corrected visual acuity, and the blepharitis and epiretinal membrane were not secondary to diabetes. In a November 2019 VA eye conditions examination, the Veteran reported that he continued to have a sandy sensation in both eyes, as well as tearing. He used a lubricant eye drop at night. On examination, the Veteran's corrected distance vision was 20/40 bilaterally, and his corrected near vision was 20/20 bilaterally. His pupils were equal in diameter, round, and reactive to light, and there was no afferent pupillary defect present. There was also no anatomical loss, light perception only, extremely poor vision, or blindness. The Veteran did not have severe irregular astigmatism or diplopia. The diagnoses were bilateral pinguecula, bilateral senile nuclear sclerosis (cataracts), and left eye epiretinal membrane. The examiner indicated that the pinguecula did not cause reduction in visual acuity, and that the visual acuity reduction was due to refractive error and senile nuclear sclerosis. The examiner noted that the claimed vision condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness; none of the conditions were noted in STRs; and none of the conditions were caused by or the result of diabetes mellitus. The refractive error was congenital and developmental in origin; the bilateral pinguecula did not cause a reduction in visual acuity, and was an "extremely common, innocuous asymptomatic condition"; and the bilateral senile nuclear sclerosis was to be expected in a 71-year-old. Furthermore, there was no evidence of diabetic retinopathy upon dilated fundus evaluation. Finally, in April 2021, a VA medical opinion addendum was obtained. After review of the record, including the November 2019 VA examination report, a VA physician clarified that none of the Veteran's eye diagnoses were aggravated by the service-connected diabetes mellitus. The examiner indicated that there was no evidence of further eye clinic visits since the last examination, and no evidence of any progression of any of the eye conditions. There was also still no evidence of diabetic retinopathy. The Board first finds that the refractive error is not a disease or injury for VA purposes. See Dorland's Illustrated Medical Dictionary (32nd Ed. 2012) at 59 (defining ametropia as a discrepancy between the size and refractive powers of the eye, such that images are not brought to a proper focus on the retina; consequently hyperopia, myopia, or astigmatism are produced). As such, service connection for refractive error is not warranted. The Board next finds that the Veteran does not have a current diagnosis of diabetic retinopathy, and any other current eye diagnosis did not begin during service and is not otherwise related to an in-service injury, event, or disease, to include as due to his service-connected diabetes mellitus. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303, 3.310. Although the Veteran is competent to report having experienced any eye symptoms since service, the Veteran has not made any such assertion; rather, he has stated that he noticed vision loss "since the diabetes condition began." Even assuming the Veteran does contend that he has had hypertensive retinopathy or another eye condition since service, he is not competent to provide a diagnosis in this case or determine that any such diagnosis is related to service. The issue is medically complex, as it requires specialized medical education and knowledge of diseases of the eye and interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Furthermore, there is no medical opinion weighing in favor of service connection for the claimed vision condition. Rather, VA examiners in May 2014, November 2019, and April 2021 concluded that none of the Veteran's eye diagnoses were due to or related to service, to include being caused by or aggravated by the service-connected diabetes mellitus. The Board finds the VA examiners' opinion to be probative because they were rendered after the examiners reviewed the Veteran's claims file, solicited a medical history from the Veteran, and conducted a physical examination of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The examiners provided the facts and rationale on which their opinions were based, and the opinions are further bolstered by their consistency with other medical treatment records in the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, neither the Veteran nor his representative has produced a medical opinion to contradict the conclusions of the VA examiners. As such, there is no competent medical evidence that relates any of the current eye diagnoses to the Veteran's military service. 2. Service connection for polyps. The Veteran contends without further elaboration that service connection for polyps is warranted. The Board notes that although polyps are not among the disabilities that may be presumptively service-connected on the basis of herbicide exposure, service connection may still be granted on a direct basis as the result of the Veteran's in-service exposure to herbicides. See Polovick v. Shinseki, 23 Vet. App. 48 (2009); see also 38 U.S.C. § 5103A(d)(1); Barr v. Nicholson, 21 Vet. App. 303 (2007). STRs indicate that in a January 1968 preinduction examination, the Veteran's abdomen and viscera were noted to be clinically normal, and he denied a history of frequent indigestion or stomach, liver, or intestinal trouble. In February 1970, the Veteran reported having pain on the right side of his abdomen and right side of his lower black. He was assessed as having musculoskeletal pain. In a March 1970 separation examination, the Veteran's abdomen and viscera were again noted to be clinically normal, and he reported having intestinal trouble. In an April 1970 report of medical history, the Veteran denied having any stomach, liver, or intestinal trouble. Post-service VA examinations in June 1970 and January 1985 are silent for mention of any polyps or related complaints or findings. VA treatment records indicate that in a December 2007 colonoscopy, the Veteran was found to have an adenomatous polyp and diverticulitis. In February 2008, he was found to have a duodenal polyp during an esophagogastroduodenoscopy (EGD). He was found to have a small residual duodenal polyp in February 2009 and a duodenal polyp in October 2009, which was positive for H. pylori. In a December 2020 VA intestinal conditions examination, a VA physician reviewed the Veteran's records and opined that the colon polyp and duodenal polyps were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the colon polyp was diagnosed in 2007, and that the abdominal pain reported by the Veteran in service was found to be musculoskeletal pain. The examiner also noted that STRs did not document any complaints, symptoms, diagnosis, or treatment regarding duodenal polyps during service, and there was no evidence of development of polyps within a year after separation from service. The Veteran was diagnosed with duodenal polyps in 2008, many years after separation from service, and no positive association between duodenal polyps and Agent Orange exposure has been found to exist. In an April 2021 VA medical opinion addendum, a VA physician reviewed the Veteran's records and clarified that the duodenal polyps were less likely than not incurred in or caused by the Veteran's exposure to herbicide agents. The examiner explained that the duodenal polyps were secondary to chronic stomach inflammation or gastritis, which the Veteran had; familial adenomatous polyposis; and/or stomach medication such as a proton pump inhibitor. Other risk factors included age and bacterial stomach infection, such as helicobacter pylori (H. pylori), which the Veteran also had. The Board finds that the polyps did not begin during service and are not otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Although the Veteran is competent to report having experienced symptoms such as abdominal pain since service, the Veteran has not made any such assertion; rather, he simply asserted that service connection for polyps is warranted. The earliest evidence of complaints or treatment for polyps in 2007, which was 37 years after the Veteran's separation from service. This lengthy period of time without diagnosis or treatment weighs against the finding that any current polyp diagnosis has existed since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is also no evidence that the Veteran has the medical education and training required to make a competent medical diagnosis, or to attribute such diagnoses to specific events or diseases. As such, the Board finds the Veteran's statements probative with regard to establishing his symptoms, but finds little probative value with regard to establishing service connection. In any case, their probative value is outweighed by the probative value assigned to an evaluation conducted by a person who has expertise and training pertinent to intestinal diagnoses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Furthermore, there is no medical opinion weighing in favor of service connection for the claimed polyps. Rather, two VA examiners in December 2020 and April 2021 concluded that the polyps were not due to or related to service. The Board finds the VA examiners' opinion to be probative because they were rendered after the examiners reviewed the Veteran's claims file, including STRs and post-service treatment records. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The examiners provided the facts and rationale on which their opinions were based, and the opinions are further bolstered by their consistency with other medical treatment records in the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, neither the Veteran nor his representative has produced a medical opinion to contradict the conclusions of the VA examiners. As such, there is no competent medical evidence that relates the polyps to the Veteran's military service. 3. Earlier effective date for the award of a TDIU. The Veteran asserts that an effective date in 2012 is warranted for the grant of a TDIU, as that is when he became too disabled to work. See the March 2015 notice of disagreement. Total disability meriting a 100 percent schedular rating exists "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability nonetheless may be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For purposes of determining whether these threshold minimum rating requirements are met, disabilities affecting both upper or lower extremities or stemming from common etiology or single accident are considered as one, collective disability. In this case, the above service connection claims stem from January 2010 and March 2011 rating decisions. The January 2010 rating decision denied service connection for a vision defect, and granted service connection for diabetes mellitus type II, assigning a 20 percent rating effective August 20, 2009. The March 2011 rating decision denied service connection for polyps and granted service connection for peripheral neuropathy of the bilateral upper and lower extremities, assigning noncompensable ratings for all four extremities effective October 18, 2010. The Veteran appealed the initial ratings for diabetes mellitus and peripheral neuropathy along with his appeals of service connection for a vision defect and polyps. In May 2014, during the pendency of the appeals, the RO increased the ratings for the bilateral upper extremities to 20 percent and the bilateral lower extremities to 10 percent, all effective October 18, 2010. In June 2017, the Board determined that an initial rating in excess of 20 percent for diabetes mellitus was not warranted and granted staged ratings for peripheral neuropathy of the bilateral upper and lower extremities, assigning a 30 percent rating for the left upper extremity, a 40 percent rating for the right upper extremity, and 40 percent ratings for the bilateral lower extremities, each effective May 12, 2014. During the pendency of these appeals, service connection for coronary artery disease was granted and a 60 percent rating was assigned effective June 6, 2012. As such, the Veteran met the schedular requirements for entitlement to a TDIU from October 18, 2010, as he had two or more service-connected disabilities, at least one of which was rated at 40 percent or higher and a combined rating of 70 percent, inclusive of the bilateral factor. See 38 C.F.R. § 4.16(a), 4.25, 4.26. In a December 2014 rating decision, entitlement to a TDIU was granted effective July 18, 2014, "the date that it is factually ascertainable" that the Veteran was unable to maintain a substantially gainful employment due to his service-connected heart disability. Resolution of the appeal of this claim therefore turns on whether his service-connected disabilities precluded the Veteran from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits him to earn a "living wage") prior to July 18, 2014. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Regarding his education and employment history, the Veteran indicated in a September 2012 TDIU application that he attended two years of college and worked for 28 years as a receiving clerk at a supermarket before becoming too disabled to work in October 2010. In a July 2014 TDIU application, the Veteran indicated that he attended two years of high school and worked as a receiving clerk before becoming too disabled to work in October 2009. He indicated that his coronary artery disease and diabetes render him unable to work. The Board finds that the Veteran's service-connected disabilities have precluded him from securing or following substantially gainful employment consistent with his educational and work background since June 6, 2012. In an August 2012 VA heart conditions examination, the Veteran was noted to have had a myocardial infarction (heart attack) earlier that year in March. He had a coronary artery bypass graft (CABG), and symptoms of angina, dizziness, fatigue, dyspnea with exertion (i.e., walking more than 100 yards or climbing one flight of stairs), and swelling of the legs had persisted. Interview-based METs testing indicated that the Veteran had symptoms of dyspnea, fatigue, angina, and dizziness at a level of 3-5 METs, which was consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). The examiner indicated that the Veteran's heart condition did not impact his ability to work; however, no further explanation or information was provided and it is unclear to the Board if the Veteran was asked about his employment status or how the examiner determined that the heart disability had no impacts on employment. In October 2012, a VA examiner indicated that the Veteran's diabetes mellitus and peripheral neuropathy had moderate impacts on the Veteran's usual occupation, including decreased strength in all four extremities, problems with lifting and carrying, and fatigue and dyspnea on exercise. The examiner opined that the Veteran could obtain, secure, and perform a job requiring light semi-sedentary work that did not require standing or walking for prolonged periods of time or lifting or carrying more than 20 pounds. In a May 2014 VA heart conditions examination, the examiner concluded that the Veteran's heart condition rendered him "unable to perform any type of employment." In a May 2014 VA peripheral nerves examination, the examiner indicate that the Veteran's peripheral neuropathy impacted his ability to work in that he was unable to secure a regularly scheduled occupation, as he had lost stamina and dexterity, and was unable to move with agility. Thus, based on the above, the Board finds that from June 6, 2012, the date that service connection was granted for coronary artery disease, the Veteran's service-connected disabilities had rendered him unemployable. As such, the award of an earlier effective date of June 6, 2012, is granted for entitlement to a TDIU. The Board also finds that the evidence does not establish that the Veteran's service-connected disabilities rendered him unemployable prior to June 6, 2012. In this regard, in a March 2011 VA peripheral nerves examination, the only examination conducted between October 2010 and August 2012, the examiner noted that the Veteran had retired in 2010 due to eligibility by age or duration of work. The examiner noted only "not working" when asked about the effects of the peripheral neuropathy on the Veteran's usual occupation and resulting work problem(s), and indicated there were no effects of the problem on the Veteran's usual daily activities. Furthermore, records from the Social Security Administration (SSA) indicate that the Veteran was found to be disabled as of March 11, 2010, due to a primary diagnosis of affective disorders. No secondary diagnosis was established, and the Board notes that the Veteran is not service-connected for any psychiatric disorder. The Board recognizes that the Veteran is competent to report on the nature and perceived impact of his symptoms to the extent that they are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). However, under the facts of this case, the Board finds that the Veteran has limited competence to opine on the occupational impact of such symptoms, as this is beyond his lay competence. Moreover, the Veteran has made contradictory statements about the dates and reason for leaving his employment, noting that he became too disabled to work in 2009, 2010, or 2012, and asserting that he had retired due to his age, duration of work, service-connected disabilities, and nonservice-connected mental health condition. As such, upon review of the evidence of record, the Board finds that the Veteran's service connected disabilities did not render him unemployable prior to June 6, 2012. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran's claim for this period of the appeal. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, an effective date prior to June 6, 2012, for the award of entitlement to a TDIU is denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.