Citation Nr: 21042421 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-57 068 DATE: July 13, 2021 ORDER Entitlement to service connection for an eye disorder is denied. Entitlement to a disability rating higher than 0 percent for the service-connected deviated septum is denied. FINDINGS OF FACT 1. The Veteran has refractive error. 2. The service-connected deviated septum is manifested by less than 50 percent obstruction of the nasal passage on both sides, and less than complete obstruction on one side. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an eye disorder are not met as a matter of law. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9. 2. The criteria for a disability rating higher than 0 percent for the service-connected deviated septum are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97, Diagnostic Code 6502. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from October 1997 to April 2000. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas. In August 2019, the Veteran presented testimony at a Board hearing, chaired via videoconference by a Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In November 2020, the Veteran was informed that the judge who conducted the hearing was not available to decide his claim and that he could request a new Board hearing. He did not respond. In January 2020, the Board denied service connection for a mental disorder and remanded the issues addressed here for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board's decision with respect to mental disorder is final. See 38 C.F.R. § 20.1100. Service ConnectionLaw and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for an eye disorder. Service treatment records reveal that, at service entry, ophthalmoscopic examination, visual acuity, refraction, pupils, and ocular motility were all normal. Corrected visual acuity was 20/25 in the right eye; uncorrected visual acuity was 20/25 in the left eye (Record 04/11/2000 at 72). On November 4, 1997, the Veteran had unaided visual acuity of 20/20 in each eye (Record 04/11/2000 at 61). On October 20, 1998, the Veteran was treated for an irritated right eyelid (Record 04/11/2000 at 51). When examined for a flight physical in December 1999, the examiner diagnosed bilateral keratoconus (Record 04/11/2000 at 33). When examined on January 8, 2000, Pupils were equal and reactive to light and accommodation (Record 04/11/2000 at 32). At service separation in April 2000, ophthalmoscopic examination, visual acuity, refraction, pupils, and ocular motility were all normal. Visual acuity was 20/25 and 20/15 in the left eye. A history of keratoconus in the right eye was noted (Record 04/11/2000 at 63). An August 10, 2011, VA mental health note reveals the Veteran denied eye problems (Record 09/19/2018 at 393). Retinal imaging on August 14, 2012, showed no retinopathy (Record 09/19/2018 at 363). A VA Examination of the eyes in October 2013 reveals a diagnosis of keratoconus. Visual acuity was 20/20 in each eye, corrected and uncorrected. There was no impact of the condition on the Veteran's ability to work. The examiner opined that the diagnosed condition was less likely than not (less than 50 percent probability) related to service. The rationale was that it is a genetic disorder (Record 10/21/2013). A July 2019 letter from C. Newman, OD, states "You have a corneal condition called 'Keratoconus, stable, bilateral'" (ICD 10 CM Code: H18.613). This condition distorts the cornea, the primary light ray bending lens of the eye, thus, decreasing corrected acuity. Special contact lenses, called medically necessary contact lenses, are needed to provide normal visual function" (Record 10/29/2019). An October 2019 letter from Dr. Newman states that the Veteran's service treatment records showed keratoconus as of Jan 12, 2000, therefore the current condition is linked to service (Record 10/29/2019). A VA Examination of the eyes in March 2020 reveals the Veteran's complaint of light sensitivity. Corrected and uncorrected vision was 20/20 in each eye. There was no current diagnosis of an eye disorder and no impact on his ability to work (Record 03/06/2020). After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for an eye disorder are not warranted. While the Veteran has been currently diagnosed with keratoconus, this condition has been described by the Veteran's own provider in terms of reduced visual acuity. It is a condition that distorts the lens that decreases visual acuity. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Accordingly, while there is mixed evidence regarding whether any current diagnosis is warranted, even acknowledging the current diagnosis, service connection cannot under VA law be granted for this condition. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Increased RatingsLaw and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 0 percent for the service-connected deviated septum. The current appeal arises from an increased rating claim received at VA on January 25, 2013. In a January 2014 rating decision, VA granted service connection for a deviated septum and assigned an initial disability rating of 0 percent under Diagnostic Code 6502, effective January 25, 2013. Under Diagnostic Code 6502 deviation of the nasal septum is assigned a rating of 10 percent with traumatic origin, and with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. At the Board hearing, the Veteran testified that he cannot breathe out of his nose. One side is "completely -- like, I can't inhale." He has to take an inhaled corticosteroid. He has nose bleeds. He reported severe headaches and sinusitis (Record 08/29/2019 at 3). A VA Examination of the nose in November 2013 reveals there was not at least a 50 percent obstruction of the nasal passage on both sides. There was not a complete obstruction on either side. The examiner diagnosed a mild septal deviation to the left side. This did not cause any significant obstruction. There was no impact of the condition on the Veteran's ability to work. The examiner also diagnosed rhinitis. The examiner opined that the allergic rhinitis was not related to the nasal fracture or the septal deviation. It was a separate condition. The allergic rhinitis was not documented in service, so it was considered less likely than not to be etiologically related to military service (Record 11/18/2013). A VA Examination of the nose in March 2020 reveals the Veteran's complaint of increasing difficulties with breathing through his left nostril. There was not at least a 50 percent obstruction of the nasal passage on both sides. There was not a complete obstruction on either side. The examiner diagnosed a deviated nasal septum. Pertinent physical findings attributed to the diagnosis included a visible narrowing of the left nostril due to a deviated nasal septum to the left, which was not completely obstructed at all. There was no visible nostril erythema or inflammation. There was palpable tenderness over the bilateral maxillary and ethmoid sinus area. X-rays were unremarkable. There was no impact of the condition on the Veteran's ability to work (Record 03/06/2020). After a review of all of the evidence, the Board finds that the criteria for entitlement to a disability rating higher than 0 percent for the service-connected deviated nasal septum are not met. While the Veteran has provided credible testimony that it is difficult to breathe out of his left nostril, the criteria call for obstruction, and are not based on difficulty breathing, which may be due to many factors. Obstruction of the nasal passage can be determined by examination. In this case, examination of his nostrils on two occasions found that there was not a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. Thus, the criteria for a compensable rating are not met. The Board acknowledges the Veteran's complaint of headaches and sinusitis. However, sinusitis and headaches have not been attributed by any examiner to the service-connected deviated septum. Indeed, the March 2020 VA examiner listed the pertinent findings that were associated with the diagnosis and these did not include headaches or sinusitis. The Board interprets this as an affirmative finding that these complaints were not associated with the service-connected disability. Moreover, the finding of both VA examiners that the diagnosis should cause no impact on the Veteran's ability to work is probative evidence of the lack of any disability associated with the condition. In sum, the Board finds that the service-connected deviated septum is manifested by less than 50 percent obstruction of the nasal passage on both sides, and less than complete obstruction on one side. In light of these findings of fact, the Board concludes that a disability rating higher than 0 percent for the service-connected deviated nasal septum is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.