Citation Nr: 22014016 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-25 604 DATE: March 11, 2022 ORDER Service connection, to include on a secondary basis, for right eye disability is denied. A disability rating higher than 30 percent for residuals of left eye sub-retinal hemorrhage is denied. FINDINGS OF FACT 1. A right eye disability did not originate in service, was not manifest within one year of service, is not otherwise etiologically related to the Veteran's active service, or a service-connected disability. 2. Throughout the period on appeal, the Veteran's left eye corrected distance vision was 5/200, but it was not limited to light perception only in one eye or anatomical loss of one eye. CONCLUSIONS OF LAW 1. The criteria for service connection, to include on a secondary basis, for right eye disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for a disability rating higher than 30 percent for residuals of left eye sub-retinal hemorrhage are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6011-6064. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1985 to October 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2013 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in April 2021. In July 2018 correspondence, the Veteran indicated that he wished to withdraw his request for a videoconference hearing before the Board. Accordingly, his Board hearing request is considered withdrawn. 38C.F.R. §20.704(e). The Board's April 2021 remand directed the RO to obtain a medical opinion regarding the nature and etiology of the Veteran's claimed right eye disability. The Board finds that there has been substantial compliance with its April 2021 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, secondary service connection may be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or aggravated beyond its natural progression, by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A permanent worsening is not required, as secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). Entitlement to service connection for right eye disability The Veteran contends that his right eye disability is related to his active service, or, alternatively, proximately due to or aggravated by his service-connected residuals of left eye sub-retinal hemorrhage. There is no dispute that the Veteran has a current disability, as evidenced by a diagnosis of right eye cataract in his post-service VA treatment records and the 2013 and 2021 VA examinations. The dispositive issue is whether this disability began during service or within one year thereafter or is otherwise related to service or a service-connected disability. Upon review of the relevant evidence, the Board finds that service connection for a right eye disability is not warranted. Here, while the Veteran's service treatment records note symptoms of watery eyes and blurred vision, they are silent for a diagnosis of and treatment for right eye cataract or any other right eye disability. Additionally, post-service treatment records do not demonstrate a manifestation of right eye cataract or other right eye disability within one year of the Veteran's active service. A gap of approximately 10 years exists in the Veteran's treatment records from the time of separation from service up until the Veteran's reports of and treatment for right eye cataract in 2014. This period without treatment for right eye cataract is evidence that there has not been a continuity of symptoms. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Thus, the Board finds that the Veteran's right eye cataract did not have its onset in active service or within one year thereafter. Further, there is no medical or other competent evidence of a nexus between the Veteran's right eye cataract and service or a service-connected disability. As to direct service connection, the October 2021 VA examiner opined that it is less likely than not that the Veteran's right eye cataract was caused by or a result of military service, as the Veteran's service treatment records are silent for a specific event, injury, or illness leading to the formation of a right eye cataract. As to whether the Veteran's service-connected residuals of left eye sub-retinal hemorrhage caused or aggravated his right eye cataract, the 2021 VA examiner opined that the Veteran's right eye cataract is due to the normal aging process. Thus, the Board finds that the Veteran's right eye cataract is not related to active service or a service-connected disability. The Board finds the 2021 VA medical opinion to be probative, as it includes the most thorough and factually supported opinions of record, given they are consistent with other evidence of record and included review of the Veteran's claims file. The VA examiner determined that there was no nexus between the Veteran's right eye cataract and his military service or a service-connected disability. The VA examiner has training, knowledge, and expertise on which she relied on to form her opinions, and she provided persuasive rationales for them. The Board acknowledges the Veteran's contention that his current right eye cataract is related to service or his service-connected left eye disability. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). While the Veteran is competent to report observable symptoms, the Board finds that determining the etiology of a right eye cataract requires more than a layperson can be expected to competently address. In this case, the etiology of a right eye cataract is a complex medical question that is not within the competence of a lay person and requires medical expertise. As there is no indication that the Veteran has any medical training, education or expertise, the Board finds he is not competent to etiologically link any such symptoms to a current diagnosis. Therefore, the Board finds that the Veteran's statements as to the etiology of his right eye cataract are not sufficient to satisfy the requisite nexus requirement. In conclusion, absent medical or other competent evidence of a nexus between the Veteran's right eye cataract and service or a service-connected disability, the Veteran's claim for service connection must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity caused by a given disability. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. However, if different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Entitlement to a rating higher than 30 percent for residuals of left eye sub-retinal hemorrhage The Veteran seeks a higher disability rating for his service-connected residuals of left eye sub-retinal hemorrhage, which are currently rated as 30 percent disabling under Diagnostic Code 6011-6064, which is analogous to retinal scars, atrophy, or irregularities (Diagnostic Code 6011) under the criteria for impairment of central visual acuity (Diagnostic Code 6064). 38 C.F.R. § 4.79. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Under both the former and revised criteria for Diagnostic Code 6064, visual acuity, a 30 percent rating is warranted when visual acuity in one eye (the poorer eye) is 5/200, and vision in the other eye is 20/40. 38 C.F.R. § 4.79. The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). 38C.F.R. §4.75(d). Upon review of the relevant evidence, the Board finds that a disability rating higher than 30 percent for residuals of left eye sub-retinal hemorrhage is not warranted. As the amended regulations went into effect during the rating period on appeal, both the former and revised criteria under Diagnostic Code 6064 are for consideration, which instruct to evaluate the Veteran's left eye disability based on visual impairment. For the next-higher 40 percent disability rating to be warranted, the evidence must show anatomical loss of the left eye with vision in that eye being 5/200. As the Veteran is only service-connected for his left eye, the visual acuity of his non-service-connected right eye is considered to be 20/40 for purposes of evaluating left eye visual impairment. 38 C.F.R. § 4.75(c). Here, the 2018 and 2021 VA examinations and the 2019 private disability benefit questionnaire (DBQ) reflect left eye corrected distance vision measuring 5/200, without limitation to no more than light perception in one eye. Further, the 2013, 2018, and 2021 VA examiners, as well as the 2018 private DBQ examiner, found no evidence of anatomical loss of the left eye. Post-service treatment records throughout the period on appeal are also silent for this evidence. Thus, when combining left eye visual acuity of 5/200 with visual acuity in the non-service-connected right eye of 20/40, pursuant to 38 C.F.R. § 4.75(c), this equates to a 30 percent disability rating based on visual acuity, the highest available disability rating for visual impairment of a service-connected eye where there is no anatomical loss of the eye. Therefore, the currently assigned 30 percent disability rating for residuals of left eye sub-retinal hemorrhage is appropriate, and a higher rating is not warranted. The Board has considered whether special monthly compensation (SMC) is warranted for the Veteran's loss of vision under U.S.C. 1114(l) and U.S.C. 1114(m). 38C.F.R. §3.350. Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. U.S.C. 1114(m). Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility. Id. Further, 5/200 visual acuity or less bilaterally qualifies for entitlement to SMC under 38 U.S.C. § 1114(l). Here, the 2013, 2018, and 2021 VA examiners, as well as the 2019 private DBQ examiner, found no evidence of anatomical loss of the left eye. While the 2013, 2018, and 2021 VA examiners noted that the Veteran was unable to recognized test letters at 1 foot or closer, they also indicated that the Veteran could perceive objects, hand movements, and count fingers at 3 feet, and, therefore, he was not limited to no more than light perception in the left eye. Moreover, the Veteran's non-service connected right eye does not demonstrate 5/200 visual acuity. As such, the Board finds that SMC under U.S.C. 1114(l) or 38 U.S.C. § 1114 (m) is not warranted. In conclusion, the Veteran's claim for a disability rating higher than 30 percent for residuals of left eye sub-retinal hemorrhage is denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.