Citation Nr: 21026458 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 11-31 719A DATE: May 3, 2021 ORDER Entitlement to service connection for residuals of an eye injury, to include glaucoma, for accrued benefits or substitution purposes, is denied. FINDING OF FACT The Veteran did not have diagnosed residuals of an in-service eye injury, nor does the competent evidence of record attribute his glaucoma to service. CONCLUSION OF LAW The criteria for service connection for residuals of an eye injury, to include glaucoma, for accrued benefits or substitution purposes are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1965 to June 1967. The Veteran died in August 2015. At the time, he had a claim pending for service connection. The Appellant is the surviving spouse of the Veteran, and she has been properly substituted as a claimant. This case is on appeal to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in July 2009. The Veteran testified before the undersigned in May 2014. A copy of the transcript has been associated with the claims file. This case was most recently before the Board in September 2020, at which time it was remanded to the AOJ for additional development. The Board finds that the AOJ substantially complied with remand directives, and the issue is ready for adjudication. 1. Entitlement to service connection for an eye disability, to include glaucoma, for accrued benefits or substitution purposes Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Service connection can be established by evidence that shows "(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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, refractive errors are not diseases for VA compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. In the absence of a superimposed disease or injury, service connection may not be granted for 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. Thus, VA regulations specifically prohibit service connection for 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. 45,711 (July 18, 1990). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may only be awarded to an applicant who has a disability existing on the date of application or at any time during the appellate period, not for past disability. Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); Romanowsky v. Shinseki, 26 Vet. App. at 294. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the evidence, the Board initially notes that the Veteran's service treatment records (STRs) are silent for any diagnosed eye disabilities or residuals from a scratched cornea. At examinations in May 1964 and June 1965, a clinical evaluation of the Veteran's eyes was normal. In May 1965 visual acuity was 20/30 bilaterally. In June 1965, the Veteran's vision in the right eye was 20/25 and it was 20/30 in the left. In January 1966, the Veteran reported being hit in the eye. On examination, he was noted to have had a foreign body superficial scratch on the cornea of the left eye. The plan was to keep a patch on the eye, and prescription sunglasses were ordered. At a separation examination in May 1967, the Veteran was noted to have no eye pathology. Clinical evaluation of the eyes was normal, and visual acuity was 20/25 bilaterally and corrected to 20/20. The Veteran was afforded a VA examination for his claim in March 2007. He was diagnosed with glaucoma in each eye. The Veteran had eye irritation and difficulty with vision and glare at night. He reported a foreign body in the left eye during service. On physical examination, the Veteran had normal corneas. The examiner opined that the Veteran's bilateral glaucoma was not related to his history of corneal abrasion. An outpatient record dated in December 2007 shows that the Veteran had dry eye syndrome and blepharitis. In January 2008, the Veteran reported that he had decreased vision since service. In August 2009, the Veteran submitted articles in support of his claim. They purportedly indicate that glaucoma may be secondary or traumatic, and a history of eye injury may be remote or overlooked. A VA medical center Director wrote a letter to the Veteran in August 2009. He explained that the Chief of the Compensation Pension Section reviewed his documentation and medical records regarding his eyes. There was "substantial documentation to support [his] eye complaints." At an outpatient appointment in February 2010, the Veteran reported that his eyes felt irritated, and had felt that way since service. He had been feeling like his eye was "raw." In November 2010, the Veteran was diagnosed with cataracts. In April 2011, the Veteran reported that his eyes had felt scratchy and raw for over 40 years. The Veteran testified at a Board hearing in May 2014. He reported that he was told in service that he would have eye problems later on, and his eye kept feeling like "it's never been right." In May 2014, the Veteran submitted argument that glaucoma could be related to prior trauma, and its onset may be many years after trauma. In January 2015, the Veteran was diagnosed with posterior vitreous detachment and lattice degeneration. The AOJ obtained a medical opinion in April 2019. The examiner indicated that the Veteran's open angle glaucoma in both eyes was less likely than not related to his history of corneal abrasion in 1966. There was no evidence in the records of sequelae from the corneal abrasion, and there was no diagnosis or findings (such as angle recession) consistent with traumatic glaucoma. A supplemental opinion was provided in February 2021. The examiner indicated that the Veteran's statements, testimony, arguments, and articles were reviewed. The examiner explained that a corneal abrasion is self-limiting. History of an abrasion is not associated with increased likelihood of developing dry eye syndrome, blepharitis, cataracts, glaucoma, posterior vitreous detachment, or lattice degeneration. The Veteran was not diagnosed with traumatic or secondary glaucoma or any other chronic eye condition that was related to trauma, and there were no findings consistent with traumatic glaucoma. Additionally, the March 2007 VA examination showed no evidence of corneal scarring or other abnormality or residuals of an abrasion. Having reviewed the evidence, the Board finds that service connection for an eye disability is not warranted. First, the competent evidence shows that the Veteran did not have a diagnosed residual related to a corneal abrasion, and did not have one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran's STRs show that there was no eye pathology found on separation and he had normal clinical evaluation of the eyes after the abrasion. The May 2007 examiner noted that the Veteran's corneas were normal, and the April 2019 and February 2021 VA examiners indicated that the Veteran's medical records showed no evidence of corneal scarring or other abnormality or residuals of an abrasion. Additionally, the February 2021 VA examiner explained that corneal abrasions are self-limiting. While the May 2007 and April 2019 VA examinations had some limitations by not addressing certain diagnoses, the record as a whole now contains opinions addressing all the Veteran's eye diagnoses. Accordingly, the Board affords the May 2007 and April 2019 VA examinations some, but not significant, weight; the February 2021 VA examination receives significant weight. The February 2021 examiner also reviewed the Veteran's statements and articles in support of the claim, and explained that the Veteran was not diagnosed with secondary or traumatic glaucoma, nor were there findings of such, indicating that his glaucoma was unrelated to the abrasion in service. The record contains competent evidence showing no residuals from the Veteran's corneal abrasion. Without a disability, service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Therefore, the Board finds that service connection for residuals of a corneal abrasion is not warranted. While the evidence establishes that, during the appeal, the Veteran had dry eye syndrome, blepharitis, cataracts, glaucoma, posterior vitreous detachment, and lattice degeneration, the competent evidence shows that the Veteran's diagnoses are not associated with his in-service corneal abrasion such that they may be considered residuals. The February 2021 examiner indicated that none of the Veteran's diagnoses was related to a historic, self-limiting corneal abrasion, and that a corneal abrasion did not increase one's likelihood of developing any of the Veteran's diagnosed eye disabilities. Additionally, the Veteran's refractive error is not a disease or injury within the meaning of applicable legislation for VA compensation purposes. No examiner diagnosed the Veteran with an eye disability related to the corneal abrasion, and no pathology was noted. Therefore, the Board finds that the competent evidence is against a finding that any refractive error was subject to a superimposed disease or injury that caused additional disability. The Board notes that the April 2009 medical center Director's letter is insufficient to grant the claim. The letter does not address the required legal standard and does not provide any rationale for granting service connection. In fact, the letter does not directly address service connection, but rather indicates that the Veteran's records show many "eye complaints." While there are numerous complaints and diagnoses contained in the record, there is no positive nexus opinion attributing any of the Veteran's diagnosed eye disabilities to service. The Board acknowledges the Veteran's statements that his eyes felt raw and irritated since service. However, this evidence is insufficient to grant the claim. There is no evidence to suggest that the Veteran or Appellant is competent to diagnose abrasion residuals or provide a nexus opinion. The issue is medically complex, as it requires the interpretation of symptoms and medical findings by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given that the medical professionals have not provided any diagnosed residuals in the available records, and the February 2021 examiner specifically reviewed the Veteran's reported symptomatology, the Board must rely on the competent medical evidence before it in concluding that there were no diagnosed sequelae and no nexus. The Board gives the competent medical evidence, including the March 2007, April 2019, and February 2021 VA examinations, significant weight in this regard. (Continued on the next page) The Board is sympathetic to the Veteran's and the Appellant's claim. However, as outlined above, the claim for service connection fails on the nexus element, as there is insufficient evidence in the record establishing a causal relationship between any of the Veteran's diagnosed eye disabilities and the in-service event. In reaching the above conclusion, 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, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.