Citation Nr: 21023869 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-36 818 DATE: April 21, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for bilateral dry eyes with meibomianitis and light sensitivity is denied. Entitlement to service connection for glaucoma, including as secondary to dry eyes with meibomianitis and light sensitivity; is denied. Entitlement to service connection for cataracts, including as secondary to dry eyes with meibomianitis and light sensitivity; is denied. FINDINGS OF FACT 1. The Veteran bilateral dry eye syndrome does not result in an exceptional disability picture. 2. The Veteran’s glaucoma is not secondary to service-connected bilateral dry eyes with meibomianitis and light sensitivity, and is not otherwise related to an in-service injury or disease. 3. The Veteran’s cataracts are not secondary to service-connected bilateral dry eyes with meibomianitis and light sensitivity, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for bilateral dry eye syndrome have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6025. 2. The criteria for service connection for glaucoma due to service or his service-connected dry eyes with meibomianitis and light sensitivity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for cataracts due to service or his service-connected dry eyes with meibomianitis and light sensitivity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1969 until his honorable discharge in May 1972 and he served on active duty in the United States Navy from January 1980 until his honorable discharge in December 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the January 2015 and September 2015 rating decisions by the Oakland, California Regional Office (RO) of the United States Department of Veterans Affairs (VA). In January 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain a VA eye examination. In response, the RO obtained a VA eye examination. In October 2020, the Board again remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain an addendum opinion for a VA eye examiner. In response, the RO obtained a VA examiner’s addendum opinion. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to a disability rating in excess of 20 percent for bilateral dry eyes with meibomianitis and light sensitivity The Veteran asserts that he is entitled to a higher disability rating for bilateral dry eyes with meibomianitis and light sensitivity. However, it is unclear as to the basis for his assertion. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. The Veteran’s dry eye syndrome is rated under 38 C.F.R. § 4.79, Diagnostic Code 6099-6025. Diagnostic Code 6099 denotes an unlisted condition of diseases of the eye. Under Diagnostic Code 6025, a 20 percent disability rating is warranted for bilateral disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). A 10 percent disability rating is warranted for unilateral disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). The Veteran was afforded a VA examination in March 2020. The March 2020 VA examiner diagnosed the Veteran with dry eye syndrome of the bilateral eyes. Therefore, the preponderance of the evidence is against the award of a disability rating in excess of 20 percent for bilateral dry eyes with meibomianitis and light sensitivity as the Veteran is already at the schedular maximum. The Board has considered other Diagnostic Codes, however in the present case, Diagnostic Code 6025 is the most precise and specific Diagnostic Code for the Veteran’s particular disability and the Board will address the Veteran’s claims for entitlement to service connection for bilateral glaucoma and bilateral cataracts in detail below. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). 2. Entitlement to service connection for glaucoma, including as secondary to dry eyes with meibomianitis and light sensitivity 3. Entitlement to service connection for cataracts, including as secondary to dry eyes with meibomianitis and light sensitivity Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he is entitled to service connection for bilateral glaucoma and bilateral cataracts due to exposure to tear gas and/or mustard gas noting that he complained of blurred vision during service. Alternatively, the Veteran asserts that he is entitled to service connection as secondary to his service-connected bilateral dry eyes with meibomianitis and light sensitivity. As a preliminary matter, the Board notes that the Veteran is diagnosed with primary open-angle glaucoma (bilateral) and age-related cataracts; and the Veteran is service-connected for bilateral dry eye syndrome. Therefore, the question for the Board is if the Veteran’s open-angle glaucoma (bilateral) and/or his age-related cataracts are caused by or aggravated by his service-connected bilateral dry eye syndrome or directly related to his active service. The Board finds that there is not medical nexus evidence establishing a connection between the Veteran’s service-connected disability and the current disability nor the Veteran’s current disabilities directly to his active service. The Veteran was afforded a VA examination in February 2020 and the RO obtained an addendum opinion in November 2020. The VA examiner opined that the Veteran’s glaucoma is less likely than not (less than 50 percent probability) incurred in or caused by the Veteran’s service-connected bilateral dry eyes with meibomianitis and light sensitivity because glaucoma is a group of eye conditions that damage the optic nerve, the health of which is vital for good vision, the damage is often caused by abnormally high pressure in the eye, and glaucoma is not worsened or affected by bilateral dry eyes with meibomianitis and light sensitivity because it is a separate and different entity than the Veteran’s service connected bilateral dry eyes with meibomianitis and light sensitivity. Furthermore, the VA examiner opined that the Veteran’s cataracts is less likely than not (less than 50 percent probability) incurred in or caused by the Veteran’s service-connected bilateral dry eyes with meibomianitis and light sensitivity because cataracts are cloudy areas in the lens of the eye that can cause changes to vision with symptoms including cloudy or fuzzy vision and sensitivity to glare and are not worsened or affected by bilateral dry eyes with meibomianitis and light sensitivity because they are separate and different entity that the Veteran’s service connected bilateral dry eyes with meibomianitis and light sensitivity. The November 2020 VA examiner opined that the Veterans glaucoma and cataracts are also less likely than not (less than 50 percent probability) aggravated beyond their natural progression by the Veteran’s bilateral dry eye syndrome because they are progressive diseases that get worse over time due to age and natural disease progression and they do not get worse due to dry eye syndrome. Accordingly, entitlement to service connection on a secondary basis for glaucoma and cataracts are both denied. As to direct service connection under 38 C.F.R. § 3.303, the record does not show that his glaucoma nor cataracts are directly due to his military service. In this regard, a review of the record on appeal does not show the Veteran being diagnosed with glaucoma nor cataracts while on active duty. See 38 C.F.R. § 3.303(a). Likewise, the record does not show the Veteran had a problem with glaucoma in and since service because the record does not reflect him being diagnosed with glaucoma until no earlier than 2005; over 20 years after service. See 38 C.F.R. § 3.303(b). Furthermore, the record does not show the Veteran had a problem with cataracts in and since service because the record does not reflect him being diagnosed with cataracts until 2014; approximately 35 years after service. See 38 C.F.R. § 3.303(b). Finally, the Board notes that the Veteran asserts that these disabilities were due to exposure to tear gas and/or mustard gas during service. However, as the May 2015 VA examiner noted, the Veteran first complained of blurred vision in April 1970 but was not exposed to tear gas until November 1971. At the time, the Veteran was diagnosed with astigmatism and his vision was corrected to 20/20 bilaterally. Furthermore, as the August 2019 VA examiner noted, although mustard gas or tear gas can cause permanent blindness or recurrent keratitis, it is not known to cause cataracts; concluding that the Veteran’s cataracts are not secondary to exposure to mustard or tear gas. The November 2020 VA examiner concluded that the Veterans glaucoma and cataracts are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness because the onset of the disabilities were well after the Veteran served on active duty. Accordingly, entitlement to service connection on a direct basis for glaucoma and cataracts are both denied as well. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.