Citation Nr: 0002698 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-14 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for chronic conjunctivitis, keratitis, and corneal opacities, claimed as residual to mustard gas exposure. 2. Entitlement to a higher initial rating for service- connected chronic dry eyes, rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran had active military service from November 1943 to April 1946. This matter arises from a June 1996 rating action from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that determined that a claim for service connection for conjunctivitis, keratitis, or corneal opacities was not well grounded. That decision also determined a claim for service connection for knee pain was not well grounded. The veteran also appealed the rating assigned for laryngitis; however, the RO later assigned a higher rating for laryngitis and the veteran indicated satisfaction with that rating. The veteran provided testimony at the RO before the undersigned member of the Board in March 1998 concerning service connection for conjunctivitis, keratitis and corneal opacities. In September 1998, the Board determined that the claim for service connection for bilateral knee pain due to mustard gas exposure was not well grounded. That issue is therefore no longer before the Board. In that decision, the Board remanded the claim for service connection for chronic conjunctivitis, keratitis, and corneal opacities, claimed as residual to mustard gas exposure, for additional development. In an October 1998 rating decision, the RO established service connection for chronic dry eyes, assigning a 10 percent rating. The veteran has appealed for a higher rating for chronic dry eyes. Although he initially requested a hearing on that issue, he later withdrew the request. In a May 1999 rating decision, the RO denied a claim for service connection for bladder cancer as a result of exposure to mustard gas. The veteran submitted a notice of disagreement and the RO issued a statement of the case. However, the veteran has not submitted a substantive appeal pertaining to that issue. He is reminded that if he still wishes to obtain Board review of that RO decision, he must submit a timely substantive appeal. See 38 C.F.R. § 20.202 (1999). FINDINGS OF FACT 1. The veteran was exposed to mustard gas during service. 2. Although a VA treatment report notes mild conjunctivitis in 1994, the claim for service connection for conjunctivitis, keratitis, or corneal opacities lacks a competent diagnosis of those conditions. 3. All evidence necessary for an equitable disposition of the veteran's appeal for a higher initial rating for dryness of the eyes has been obtained to the extent possible. 4. Throughout the appeal period, the veteran's chronic dry eye disability has been manifested by exudation and irritation of the eyelids that interferes with tear formation, involves the lacrimal duct, and requires the use of creams and artificial tears. CONCLUSIONS OF LAW 1. The claim for service connection for conjunctivitis, keratitis, or corneal opacities is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for assignment of a 20 percent initial rating for chronic dry eyes are met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.84a, Diagnostic Code 6099-6025 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In order to establish service connection for a disability, the evidence must show it resulted from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1137 (West 1991); 38 C.F.R. § 3.303 (1999). 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) (1999). Full body exposure to nitrogen or sulfur mustard during active military service, together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: Nasopharyngeal; laryngeal; lung (except mesothelioma); or squamous cell carcinoma of the skin; is sufficient to establish service connection for that condition. Service connection will not be established under this section if the claimed condition is due to the veteran's own willful misconduct or there is affirmative evidence that establishes a non-service-related intervening condition. 38 C.F.R. § 3.316 (1999). The threshold question with respect to any claim for service connection is whether the veteran has met his initial burden of submitting evidence to show that the claim is well- grounded, meaning plausible. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran must satisfy three elements for each claim for service connection to be well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be evidence of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence). Last, there must be evidence of a nexus or relationship between the in-service injury or disease and the current disorder, as shown by medical evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (1997). The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection manifested itself to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumption period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or during any applicable presumption period, if continuity is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 498 (1997). The veteran's service medical records (SMRs) indicate that he participated in vesicant agent testing during active service. The SMRs do not reflect conjunctivitis, keratitis, or corneal opacities. Post service VA and private treatment reports reflect diagnoses of several eye disorders (retinitis pigmentosa, cataract, and chronic eye dryness) and supply etiologies for those disorders. A November 1994 VA outpatient treatment report notes mild conjunctivitis; however, it is not clear that the notation was meant to be a diagnosis of conjunctivitis. That single notation appears to be the only mention of conjunctivitis in the claims file and, because no true diagnosis has been offered, the claim lacks sufficient medical evidence of the claimed condition to find the claim to be well grounded. The veteran has reported eye symptoms such as itching and burning with eyelid irritation and caking around the eyes, which he contends are symptoms of conjunctivitis. In November 1996, the veteran reported that his symptoms were consistent with actinic or catarrhal conjunctivitis and that his cataracts would suggest corneal opacities. In March 1998, he testified before the undersigned member of the Board that no doctor had ever told him that he had conjunctivitis, keratitis, or corneal opacities. In effect, he has attempted to provide his own medical diagnosis of his symptoms. As a layperson without proper medical training and expertise, the veteran is not competent to provide probative evidence on a medical issue such as the diagnosis or etiology of a claimed medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Therefore, the veteran's allegations cannot be used as evidence of a medical diagnosis. It is clear from the argument submitted that the veteran strongly feels that service connection for conjunctivitis should be granted based on the notation of mild conjunctivitis appearing in the claims file. In order to attain service connection for conjunctivitis, he simply needs to supply VA with a medical diagnosis of conjunctivitis. In the absence of competent evidence of a diagnosis to support the claim, the claim must be denied as not well grounded. As such, the VA is under no duty to assist the veteran in developing the facts pertinent to the claim. See Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put VA on notice that any additional relevant evidence may exist which, if obtained, would well-ground the claim for service connection. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). II. Higher initial rating Initially, the Board notes that the veteran's claim for a higher initial rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that all relevant evidence for equitable disposition of the claim has been obtained to the extent possible. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (1999). Any reasonable doubt that arises in considering the evidence must be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (1999). The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In cases such as this where the veteran has appealed the initial rating assigned after service connection is established, the Board must consider the initial rating, and, if indicated, the propriety of a staged rating from the initial effective date forward. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). The veteran's SMRs are negative for any complaint of relevant eye symptoms. Retinitis pigmentosa was found in 1983. In September 1992, Robert Slavens, M.D., reported that the veteran's retinitis pigmentosa was hereditary but that other eye symptoms were very likely related to mustard gas exposure. Dr. Slavens further noted inadequacy of the tear film, injection of blood vessels of the eyes, swelling of the tissue in the front part of the eye, and irritation of the eyelids. In the early 1990's the veteran reported that he was legally blind. According to a VA rehabilitation service summary dated in July 1994, the veteran's visual impairment was secondary to retinitis pigmentosa. VA outpatient treatment reports note complaint of eye pain and drainage. In November 1994, crusting, mild blepharitis and mild conjunctivitis was noted. Artificial tears and an ophthalmic ointment were prescribed for exudation An October 1995 VA visual examination report notes that the veteran reported itching and burning in his eyes. The report reflects nuclear sclerotic cataracts with posterior subcapsular changes in both eyes. The veteran had small central vision in the left eye only. The impression was retinitis pigmentosa. Tears and cold compresses were prescribed for eye irritation. In November 1996, the veteran reported that he had sore, itching, and burning eyes and significant matter in his eyes upon awakening. He used cream on the eyelids to lubricate the eyes and he used artificial tears to wet the eyes. He reported night blindness and color blindness. In March 1996, the conjunctivae were found to be injected and the eyes were found to be dry. A May 1997 VA visual examination report notes an intraocular implant in the right eye one year earlier and a long standing cataract in the left eye. He complained of itchy, burning eyes and reported that he used artificial tears. The relevant impressions were chronic blepharitis with dry eyes. Lid scrubs and artificial tears were prescribed. In September 1997, the veteran again reported dry itching eyes. He reported that metoclopramide HCL and prednisolone acetate OPHT had been prescribed. He reported that his eyes were becoming more sensitive to light and that the pain was constant. He reported previous diagnoses of blepharitis and conjunctivitis. A September 1998 VA eye examination report reflects a history of retinitis pigmentosa, bilateral cataracts with cataract surgery on the right eye, diabetes, and complaint of dry eyes. The examiner noted poor wetting of the corneas. In October 1998, the VA examiner opined that the external eye disability was at least as likely as not related to exposure to mustard gas. In an October 1998 rating decision, the RO established service connection for chronic dry eyes. A 10 percent rating was assigned under Diagnostic Code 6099-6018. VA outpatient treatment reports dated in 1998 and 1999 are significant for complaint of worsening visual acuity; however, symptoms associated with dryness are not noted. In June 1999, the veteran reported that every morning his eyelids stuck together, that he had continuous itching and burning, and that the artificial tears provided little relief. He reported that he purchased his own tears because the solution that VA provided stung his eyes. He reported that bright lights and colors hurt his eyes. In November 1999, the veteran reported that unsightly matter accumulated on and around his eyelids. From the above history of the service-connected dry eye disability, the Board finds that the disability is manifested by exudation around the eyelids, irritation of the eyelids, interference with the normal tearing process (lacrimation) that involves the lacrimal duct and requires the use of creams and artificial tears. Chronic dry eyes is not listed in the Rating Schedule, and is rated by analogy to a listed disability with similar symptoms and anatomical localization. 38 C.F.R. § 4.20 (1998). The veteran's chronic dry eyes are currently rated by analogy to conjunctivitis under Diagnostic Code 6018 which provides that chronic conjunctivitis, other than trachomatous conjunctivitis, when active, with objective symptoms warrants a 10 percent rating. There is no higher rating authorized for this disability. 38 C.F.R. § 4.84a, Diagnostic Code 6018 (1999). Furthermore, Diagnostic Code 6018 does not distinguish between unilateral and bilateral involvement. Comparing the objective symptoms to the provisions of the rating schedule, the Board finds that the criteria for a 10 percent rating under Diagnostic Code 6018 are met, that is, objective symptoms are clearly met, for both eyes. In considering alternate diagnostic codes that provide ratings higher than 10 percent, the Board notes that a 20 percent rating is offered for bilateral epiphora. Diagnostic Code 6025 provides that epiphora (lacrimal duct, interference with, from any cause) warrants a 10 percent rating if unilateral and a 20 percent rating if bilateral. 38 C.F.R. § 4.84a, Diagnostic Code 6025 (1999). The lacrimal duct is a tear conduit in the eyelid. See canaliculus lacrimalis, a short passage in the eyelid leading from the lacrimal lake to the lacrimal sac. Dorland's Illustrated Medical Dictionary 253 (28th ed. 1994)). Because this diagnostic code clearly encompasses interference of the lacrimal duct from any cause, the Board reasons that impairment of the normal tearing process would result in some "interference" with the operation of the lacrimal duct. The Board finds therefore that the criteria for a 20 percent rating under Diagnostic Code 6025 are approximated and that the veteran would benefit from reclassifying the disability and rating it by analogy to that code. In considering whether a staged rating is necessary, the Board notes that the evidence indicates that the condition has not significantly changed during the appeal period. Therefore, a staged rating is not necessary. Fenderson, supra. In reaching its decision, the Board also notes that the veteran's chronic dry eyes do not reflect so exceptional or so unusual a disability picture as to warrant the assignment of an evaluation on an extra-schedular basis. In this regard, the Board observes that the veteran has a severe visual handicap that cannot be considered as part of his service-connected disability. His chronic dry eyes do not significantly impact his employment potential beyond that which is contemplated in the rating assigned nor had this disability been shown to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors, consideration of the claim as outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER 1. In the absence of evidence of a well-grounded claim, the claim for service connection for conjunctivitis, keratitis, and corneal opacities is denied. 2. A 20 percent rating for chronic dry eyes is granted, subject to the laws and regulations concerning payment of monetary benefits. J. E. Day Member, Board of Veterans' Appeals