Citation Nr: 0800340 Decision Date: 01/04/08 Archive Date: 01/22/08 DOCKET NO. 05- 31 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral keratoconus. ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran had active service from September 2000 until August 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision from the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. The RO in Montgomery, Alabama, currently has jurisdiction over the case. In accordance with the veteran's request, a video conference hearing was scheduled before a before a Veterans Law Judge at the RO in January 2007. The appellant failed to report to the scheduled hearing. As such, his request for the hearing will be considered withdrawn. See 38 C.F.R. § 20.704(d) (2007). Accordingly, the veteran's claim will be adjudicated without further delay based upon all the evidence presently of record. FINDINGS OF FACT 1. The veteran is medically required to wear contact lenses for his bilateral keratoconus. 2. The veteran's bilateral keratoconus has manifested as no worse than a corrected visual acuity of 20/40 in the right eye and 20/80 in the left eye. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for bilateral keratoconus have not been met. 38 U.S.C.A.§§ 1155, 5107 (West 2002); 38 C.F.R. § 4.84a, Diagnostic Code (DC) 6035 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). At the outset, the Board notes that the veteran's claim of entitlement to a rating in excess of 30 percent for bilateral keratoconus is an appeal from the initial assignment of a disability rating. As such, the claim requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). However, as will be discussed below, the record does not support the assignment of different percentage ratings during the time period on appeal. VA regulations provide that ratings on account of visual impairments considered for service connection are, when practicable, to be based only on examination by specialists. Such special examinations should include uncorrected and corrected central visual acuity for distance and near, with record of the refraction. Snellen's test type or its equivalent will be used. Mydriatics should be routine, except when contraindicated. Funduscopic and ophthalmological findings must be recorded. The best distant vision obtainable after best correction by glasses will be the basis of the rating, except in cases of keratoconus in which contact lenses are medically required. 38 C.F.R. § 4.75 (2007). Keratoconus is to be evaluated on impairment of corrected visual acuity using contact lenses. When either unilateral or bilateral contact lenses are medically required for keratoconus, the minimum rating assigned will be 30 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6035 (2007). As the veteran is medically required to use contact lenses, it was on this basis that the RO assigned a 30 percent disability evaluation in the February 2005 rating decision. Impairment of central visual acuity is evaluated from noncompensable to 100 percent pursuant to 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2007). The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a, Table V (2007). In relevant part, the next-higher 40 percent evaluation will be assigned where: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, DCs 6066, 6070, 6073, 6076 (2007). The evidence of record does not support a finding that the veteran's bilateral keratoconus merits a rating in excess of 30 percent. In this regard, although his visual acuity levels have varied, none of the medical evidence contains visual acuity readings that meet the standards required for an increased rating under the diagnostic criteria discussed above. In the present case, a December 2004 VA examination report found a corrected visual acuity of 20/40+1 in the right eye and 20/50-1 in the left eye. Similar results, if not better visual acuity levels, were found in multiple private medical the reports dated from 2001 until 2003. A single report in April 2003 noted visual acuity of 20/40 on the right and 20/80 on the left with correction, although the use of glasses or contact lenses for correction was not distinguished or whether near or distant vision was measured. The Board will resolve doubt surrounding the different results of the veteran's corrected visual acuity level in his favor. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that the veteran's service-connected keratoconus has been manifested by a corrected visual acuity of 20/40 in the right eye and 20/80 in the left eye. Under VA regulations for central visual acuity impairment no more than a 10 percent rating is warranted, for keratoconus disabilities based on the visual acuity level identified above. However, under DC 6035, when keratoconus requires contact lenses the minimum rating in 30 percent. In the absence of evidence of greater vision loss, a rating in excess of 30 percent for bilateral keratoconus must be denied. In his statement in support of claim dated August 2004, Notice of Disagreement dated March 2005, and his substantive appeal dated September 2005, the veteran asserted that a higher rating for his bilateral keratoconus is warranted because he is unable to wear contact lenses for long periods of time and therefore, his visual acuity level should be based on his uncorrected visual acuity level. The Board acknowledges that the veteran's service medical records reflect that he was intolerant to contact lenses, which he could only wear for a limited amount of time. Additionally, at the December 2004 VA examination, the veteran asserted that he is unable to wear contact lenses for more than an hour or two at a time. However, VA regulations base the rating of keratoconus and other eye impairments on corrected vision acuity levels and not uncorrected levels. See 38 C.F.R. 4.75 (2007). Specifically, as is the case here, keratoconus is rated based on the correction of visual acuity levels by contact lenses when they are medically required. Id. Thus, the rating of keratoconus is based on the veteran's corrected visual acuity level and not on his inability to wear contact lenses for an extended period of time. As a result, a rating in excess of 30 percent for bilateral keratoconus on this basis must be denied. In addition, the Board has considered the veteran's statements regarding his service-connected bilateral keratoconus. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, more probative than the subjective evidence of an increased disability. In sum, there is no basis for a rating in excess of 30 percent for bilateral keratoconus. The Board notes that in reaching this conclusion, the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also finds that the demonstrated difference between the veteran's near and distant corrected vision in not so substantial as to require referral to the Director, Compensation and Pension Service under the provisions of 38 C.F.R. § 4.84. Therefore, the Board finds a rating in excess of 30 percent for keratoconus is not warranted. It is also noted that the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in September 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the claimant was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent in the claim that the veteran had actual knowledge of the rating element of his claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2006. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. Therefore, adequate notice was provided to the appellant prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the veteran's service medical records. The veteran submitted treatment records from the National Navy Medical Center. In addition, the appellant was afforded a VA medical examination in December 2004. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, the available records and medical evidence have been obtained in order to made an adequate determination as to this claim. ORDER A rating in excess of 30 percent for bilateral keratoconus is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs