Citation Nr: 21021087 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-42 097 DATE: April 9, 2021 ORDER Entitlement to service connection for a bilateral eye/vision disorder, to include as secondary to service-connected hypertension, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected tinnitus, bilateral hearing loss and hypertension (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that any bilateral eye/vision disorder began during active service, is otherwise related to an in-service injury or disease, or is proximately due to or aggravated by service-connected hypertension. 2. The Veteran’s service-connected tinnitus, bilateral hearing loss and hypertension do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral eye/vision disorder, to include as secondary to service-connected hypertension, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a TDIU on an extraschedular basis due to service-connected tinnitus, bilateral hearing loss and hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to July 1967. This matter is before the Board of Veterans’ Appeals (the Board) on appeal of an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018 and September 2018, the Board remanded this matter for additional development. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral eye/vision disorder, to include as secondary to service-connected hypertension The Veteran has asserted that he has a vision disorder related to service. In the alternative, he has indicated that he has hypertensive retinopathy associated with his service-connected hypertension. 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). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310 (a)-(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) Initially, 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, while the Veteran has diagnoses of bilateral cataracts, bilateral pinguecula and posterior vitreous detachment of the right eye, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. In this regard, service treatment records are silent with respect to any complaints, findings or diagnoses pertaining to the eyes. The Veteran’s July 1967 service examination prior to discharge showed that the eyes were clinically evaluated as normal and no vision abnormalities were noted. Post-service, private clinical records show that the Veteran reported right eye spots in April 1992, almost 25 years after his discharge from service. The next indication of any eye issues is when the Veteran reported headaches and pain around his eye in July 2012, again many years after his discharge from service. At that time, he was diagnosed with bilateral cataracts. VA clinical records in 2012 showed that the Veteran reported having hypertensive retinopathy. Follow up records show that the Veteran was prescribed drops for dry eyes but are silent with respect to any findings of hypertensive retinopathy. Further, the Veteran has not provided any lay evidence of ongoing symptoms since service. In sum, there is no lay or medical evidence of pertinent symptomatology. Importantly, the November 2019 VA examiner found that the Veteran’s eye disabilities were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran did not have a diagnosis of vision loss. With respect to the Veteran’s diagnosed disabilities of bilateral cataracts, bilateral pinguecula, and posterior vitreous detachment (PVD) in the right eye, the examiner determined that they were age related and not related to any incident during the Veteran’s active duty service. Moreover, the Board concludes the preponderance of the evidence is against finding that the Veteran’s eye disabilities are proximately due to or the result of or aggravated by service-connected hypertension. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). Initially, the Board observes that 2012 VA clinical records indicated that the Veteran had hypertensive retinopathy. However, this finding appears to be based on the Veteran’s own history as opposed to objective testing. Importantly, despite numerous clinical visits for his eyes, follow up VA clinical records are silent with respect to the any such diagnosis. Likewise, the November 2019 VA examiner, after examining the Veteran and reviewing the claims file, clearly found no evidence of retinopathy. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran has suffered from hypertensive retinopathy during the course of the appeal, or prior to the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Moreover, again, the VA examiner stated that the Veteran was diagnosed with bilateral cataracts, bilateral pinguecula, and posterior vitreous detachment (PVD) in the right eye, all of which are less as likely as not (less than a 50 percent probability) caused by or aggravated by his service-connected hypertension disability. The examiner rationalized that all of the previously listed diagnoses have well known etiologies, none of which are associated with the Veteran's service-connected diagnosis of systemic hypertension. The Veteran states that years ago he had a single episode of a black out in his vision. However, the examiner was unable to find any cause, complication, sequelae or impairment from this episode on ophthalmic examination today. The Veteran has no visual impairment as his Best Corrected Visual Accuity (BCVA) is 20/20 at distance and near in both the right and left eye with correction. The VA examiner’s opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his bilateral eye/vision disorder is related to an in-service injury, event, or disease; or proximately due to or the result of/aggravated by his service-connected hypertension. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence. In conclusion, the Board finds that the preponderance of the evidence weighs against the claim for service connection for bilateral eye/vision disorder, to include as secondary to service-connected hypertension. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to a TDIU on an extraschedular basis The current appeal also includes the issue of entitlement to TDIU on an extraschedular basis. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. The Board notes that the Veteran has been awarded a maximum 100 percent disability rating for his service-connected posttraumatic stress disorder (PTSD) from July 16, 2012, the date of award of service connection. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate). See 38 U.S.C. § 1114 (s). Thus, under Bradley, even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. Accordingly, the Board must still determine whether a TDIU on an extraschedular basis is warranted due to the Veteran’s other service-connected disabilities, tinnitus, bilateral hearing loss and hypertension. During the course of the appeal, the Veteran’s tinnitus was rated as 10 percent disabling; bilateral hearing loss as noncompensable; and hypertension as noncompensable. Thus, these disabilities do not meet the schedular criteria for a TDIU. If a Veteran’s disability rating does not meet the threshold set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). As such, the Board must determine whether referral for a TDIU on an extraschedular basis is warranted. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the functional effects resulting from the Veteran’s service-connected disabilities as assessed by the VA examiners are highly probative. Based on the evidence of record, the Board finds that the Veteran is not unemployable due to his service-connected tinnitus, bilateral hearing loss and hypertension. In this regard, the Board previously found that the issue of TDIU had been raised in a February 2018 statement submitted by the Veteran’s then representative. However, in that statement, the Veteran’s representative asserted that the Veteran was precluded from securing and following substantially gainful employment due to his PTSD. There was no indication that the Veteran was unable to work due to his other service-connected disabilities. Likewise, the Veteran has not provided any lay evidence that he is unable to work due to his other disabilities. Significantly, the August 2013 VA examiner found that the Veteran’s hearing loss and tinnitus did not impact his ordinary conditions of daily life, including his ability to work. Likewise, the September 2013 VA examiner also found that the Veteran’s hypertension did not impact his ability to work. Accordingly, the evidence of record does not show that the Veteran has been precluded from substantially gainful employment due to his service-connected tinnitus, bilateral hearing loss and hypertension. In sum, the VA examiners determined that the Veteran’s tinnitus, bilateral hearing loss and hypertension resulted in no functional impact on his ability to work. Rather, based on the lay and medical evidence, the Veteran is primarily unemployable due to his PTSD, which has been rated a maximum 100 percent evaluation. Moreover, to the extent that the Veteran has attempted to establish his entitlement to a TDIU on the basis of lay assertions alone, the Board emphasizes that the Veteran is not shown to possess expertise in medical or vocational matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Rather, while he is competent to describe his symptoms from his service-connected disabilities, he is not competent to offer an opinion regarding the functional impact such has on his ability to maintain gainful employment. Hence, the lay assertions in this regard have no probative value and are outweighed by the more probative medical opinions. In sum, the competent medical evidence offering detailed specific specialized determinations on the Veteran’s functional impairment are the most probative evidence; the medical evidence also largely contemplates the Veteran’s assertions concerning his employment and descriptions of symptoms. As such, the Veteran’s assertions are outweighed by the medical evidence of record. For the foregoing reasons, the Board finds that the Veteran’s service-connected tinnitus, bilateral hearing loss and hypertension do not preclude substantially gainful employment; and referral for extraschedular consideration for TDIU is not warranted. In conclusion, the preponderance of the evidence is against entitlement to a TDIU due to service-connected tinnitus, bilateral hearing loss and hypertension. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.