Citation Nr: 21032469 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-10 901 DATE: May 27, 2021 ORDER Entitlement to service connection for a visual disability, to include glaucoma, cataracts, and pinguecula, is denied. Entitlement to a total disability rating for individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's myopia was subjected to a superimposed disease or injury in service that created additional disability. 2. The preponderance of the evidence is against finding that an eye disorder that is not a refractive error was demonstrated in service, that his glaucoma was manifested within a year of separation from active duty to a compensable degree, and that there is a nexus between the current eye disorder diagnoses, to include glaucoma, cataracts, and pinguecula, and active duty service. 3. The Veteran has not had any service-connected disabilities during the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a visual disability, to include glaucoma, cataracts, and pinguecula, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 4.9 (2020). 2. The criteria for TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to March 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from March 2012 and May 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office. In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. The Board reopened the Veteran's claim for service connection for a visual disability in July 2018 and remanded the matters for more development. Since then, the matters were remanded again in September 2019, August 2020, and January 2021 for further development. Now the matters are returned to the Board. 1. Service connection for a visual disability The Veteran is seeking service connection for a visual disability and contends that his current eye disabilities are a result of blurred vision that he had experienced during active duty service. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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) (2012); 38 C.F.R. § 4.9 (2020); 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). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Organic diseases of the nervous system are among the chronic disorders listed under 38 C.F.R. § 3.309(a), and VA has recognized glaucoma to fall within the classification of organic diseases of the nervous system. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. Initially, the Board notes that the Veteran's in-service complaint of blurred vision after reading and while driving, and a diagnosis of myopia are of record. See e.g., April 13, 1970 Ophthalmologic Consultation; see also March 26, 1969 Report of Medical History (the Veteran's "defective distant vision" was noted on his entrance examination). However, the evidence of record does not show that the Veteran suffered from any diseases or injuries related to his eyes while in active duty service. Thus, the Board finds that the preponderance of the evidence is against finding that the Veteran's myopia was subjected to a superimposed disease or injury in service that created additional disability. The Veteran underwent VA medical examination in January 2020. The examiner noted the Veteran's current diagnoses of open angle glaucoma, cataracts, and pinguecula. The examiner stated that the Veteran's pinguecula was found incidentally. The examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran was diagnosed with glaucoma in 2013 and has been non-compliant with treatment for months at a time. The examiner also pointed out that the Veteran was diagnosed with cataracts in 2013 and had bilateral cataract surgery 2 years ago. The examiner provided that neither of these eye conditions were related to any in-service event, disease, or trauma. In regard to the Veteran's diagnosis of glaucoma, the Board notes that the Veteran's private physician also noted that he was first diagnosed with glaucoma at the age of 40 in June 2013. See June 2015 Eye Conditions Disability Benefits Questionnaire completed by Dr. B.G. Additional VA medical opinion was obtained in October 2020. The October 2020 examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided that a review of the records reveals that the Veteran's glaucoma and cataracts were related to his age and/or hereditary condition and were not due to an in-service injury, event, or disease, including the in-service complaint of blurred vision in April 1970. The examiner also stated that the Veteran's pinguecula is due to UV exposure, environmental, and/or hereditary conditions and not due to an in-service injury, event, or disease, including the in-service complaint of blurred vision in April 1970. The Board finds the January and October 2020 VA medical opinions to be competent and credible evidence and assigns probative weight as they were rendered after a review of the Veteran's records in conjunction with an in-person examination of the Veteran in January 2020. During the July 2018, the Veteran testified that his glaucoma and cataract are continuation of his blurry vision in service. In this regard, the Veteran competent to report his symptoms of blurry vision; but the Board finds that he is not competent to provide a medical opinion on complicated medical issues such as the etiology of his glaucoma and cataracts. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Based on above, the Board finds that the preponderance of the evidence is against finding that an eye disorder that is not a refractive error was demonstrated in service, that his glaucoma was manifested within a year of separation from active duty to a compensable degree, and that there is a nexus between the current eye disorder diagnoses, to include glaucoma, cataracts, and pinguecula, and active duty service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for a visual disability, to include glaucoma, cataracts, and pinguecula, is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309, 4.9 (2020). 2. TDIU Further, the Veteran is seeking entitlement to TDIU. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a) (2020). To qualify for a schedular TDIU, 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 one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a)(2) (2020). Notably, disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341 (2020). Here, the Board finds that the Veteran has not had any service-connected disabilities during the entire period on appeal. As his non-service-connected disabilities cannot be considered for his entitlement to TDIU, the Board finds that the Veteran's TDIU claim must be denied. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.341, 4.16 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.