Citation Nr: 22011891 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-57 200 DATE: March 2, 2022 ORDER Entitlement to service connection for an eye disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that an eye disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an eye disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1965 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2022. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for an eye condition The Veteran seeks service connection for an eye disability. At his hearing, he reported that when he went into service, he was not wearing glasses. After he entered, he started wearing glasses. He related that he had difficulty driving at night, and cataract problems. 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). 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. Service treatment records reflect that the Veteran underwent an ophthalmologic consultation in February 1965. As a result, the Veteran was prescribed glasses to correct his vision. The Veteran was issued spectacles in December 1965. At discharge in April 1968, clinical evaluation of the Veteran's eyes was normal. Distance vision was noted at 40/20 bilaterally. The Veteran reported wearing glasses, but denied specific eye trouble in his report of medical history. The service treatment records show no complaints, treatment, or diagnosis related to an eye disability other than owing to refractive error, including glaucoma, and no pertinent abnormalities were noted during examination for separation from service (again, other than due to refractive error). Refractive errors are not considered "diseases or injuries" within the meaning of applicable legislation. Moreover, there is no indication that the refractive error was subject to a superimposed disease or injury during service to create an additional disability. Absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect 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. Parker v. Derwinski, 1 Vet. App. 522 (1991); McNeely v. Principi, 3 Vet. App. 357, 364 (1992). Service connection for refractive error may not be established. 38 C.F.R. §§ 3.303 (c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90. The service treatment records show no superimposed disease or injury during service. With respect to the other reported diagnoses, the evidence does not establish an in-service incurrence. The only evidence relating to the nexus element of service connection is the Veteran's implied statement that he believes his glaucoma condition, for which he reported he had surgery a year ago, to be related to service. The Veteran is not competent to make such a connection because he lacks the requisite medical training and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been afforded a VA medical examination or opinion to aid in substantiating his claim, but the Board finds that one is not warranted because the evidence does not establish an in-service incurrence. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for an eye disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran seeks service connection for a low back disability. The Veteran reports chronic back pain. X-ray imaging showed advanced degenerative disc disease and facet arthropathy. Accordingly, the first prong of McLendon has been met. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the second and third prongs of McLendon, at the March 2020 hearing the Veteran reported that he suffered a low back injury during service and was treated at Moncreif Army Hospital. He testified at his hearing that he has had low back problems ever since. In support of this injury, he pointed to a March 1965 physical profile showing the Veteran was returned as fit for duty. The low threshold of McLendon has been met. An opinion regarding the nature and etiology of the Veteran's low back disability should be obtained. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the low back disability at least as likely as not related to service, including a low back injury the Veteran reported happened during basic training in February 1965? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop? J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.