Citation Nr: 1537748 Decision Date: 09/03/15 Archive Date: 09/10/15 DOCKET NO. 14-07 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an effective date earlier than February 24, 2011, for the grant of service connection for corneal keratitis, dry eye. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for corneal keratitis, dry eye. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs ATTORNEY FOR THE BOARD K. Hubers, Associate Counsel INTRODUCTION The Veteran had active service from November 1979 to March 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Veteran initially requested a Board hearing to be held at the RO, but, in April 2015, the Veteran withdrew that request. The Board may proceed to the merits without a hearing. 38 C.F.R. § 20.702(e). FINDINGS OF FACT 1. In a December 2009 rating decision, the RO denied service connection for an eye condition, including as secondary to service-connected sarcoidosis. The Veteran did not file a Notice of Disagreement, submit any additional evidence within one year of that rating decision, or take any further steps to appeal that determination. 2. There is no communication or document in the claims file subsequent to the December 2009 rating decision and prior to February 24, 2011, that can be construed as a request to reopen the claim of entitlement to service connection for an eye condition, including as secondary to service-connected sarcoidosis. 3. The Veteran's corrected distance vision is, at worst, 20/25 in the right eye and 20/20 in the left eye. He has corneal keratitis (dry eye) with symptoms of dryness, redness, itchiness, and pain in sunlight. His eye condition has not resulted in incapacitating episodes of two weeks or more during any twelve month period during the relevant time frame. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 24, 2011, for the grant of service connection for corneal keratitis (dry eye) have not been met. 38 U.S.C.A. §§ 5103(a), 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.160, 3.400 (2015). 2. The criteria for a rating in excess of 10 percent for corneal keratitis (dry eye) have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.79, Diagnostic Codes 6000-6099 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, notice was provided to the Veteran on multiple occasions, including in March 2011 prior to the April 2011 initial adjudication of his claims. The contents of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Board concludes that VA satisfied its duties to notify the Veteran. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated with the claims file the Veteran's service treatment records, private treatment records, and VA treatment records. The Veteran has not identified any relevant records aside from those that are already in evidence. So, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. VA also satisfied its duty to obtain medical examinations. In April 2011, VA provided the Veteran with medical examinations with respect to his claimed eye condition. The examination is adequate as the VA examiner reviewed the Veteran's pertinent medical history, conducted a clinical evaluation of the Veteran, and provided adequate discussion of relevant symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Veteran has not alleged that the examination or resulting opinions were inadequate. VA has no obligation to obtain further medical examinations or opinions in connection with the claims on appeal. See 38 U.S.C.A. § 5103(A)(d); see also Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). In conclusion, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. General Legal Principles Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 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 latter 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 Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. Provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). III. Earlier-Effective Date for Service Connection for Corneal Keratitis The Veteran has not offered any particular argument in support of his claim of entitlement to an earlier effective date for service connection for corneal keratitis. The Board will review the pertinent facts and legal principles to determine the appropriate effective date. Here, the Veteran initially made a claim for an eye disorder, including as secondary to his sarcoidosis, in April 1989. A rating decision dated November 1989 denied the claim with respect to the claimed eye condition. The Veteran filed a January 1990 Notice of Disagreement that specified disagreement with the rating assigned, but not for the denial of entitlement to service connection for an eye condition. The Veteran did not file a Notice of Disagreement with respect to the eye claim. Also, no new and material evidence was received within the year following that rating decision. Therefore, the November 1989 rating decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. In August 2009, the Veteran filed a claim to reopen that prior claim of entitlement to service connection for an eye condition (including as secondary to sarcoidosis). The RO considered the claim and denied it in a December 2009 rating decision. The Veteran did not file a Notice of Disagreement or take any further steps to perfect an appeal of that rating decision. Also, no new and material evidence was received within the year following the rating decision. The record includes private treatment records from February 2010 relating to the eye condition as well as a brief, July 2010 note indicating that the Veteran's "sarcoidosis may be contributing to his dry eye." However, this evidence was submitted by the Veteran more than one year after the December 2009 rating decision denying his request to reopen. See February 24, 2011 Statement in Support of Claim (requesting claim of entitlement to service connection for "Dry Eye Syndrome" be reopened and attaching the referenced private treatment records). The December 2009 rating decision was not timely appealed and became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. Therefore, the last final denial was the December 2009 rating decision and the February 24, 2011, Statement in Support of Claim was the first, subsequent claim by the Veteran and led to the April 2011 grant of entitlement to service connection for corneal keratitis at issue here. The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r) (2015). The Veteran's claim of entitlement to service connection for an eye condition was denied by a final, unappealed December 2009 rating decision. 38 C.F.R. §§ 20.302, 20.1103. The Veteran first filed a claim to reopen the previously disallowed eye claim on February 24, 2011. That claim was granted in an April 2011 rating decision. Therefore, the correct effective date of the grant of entitlement to service connection for corneal keratitis is February 24, 2011. 38 C.F.R. § 3.400(q)(2), (r) (2015). That is the date the RO assigned. The Board also briefly notes that, pursuant to 38 C.F.R. § 3.156 (c), a final decision will be reconsidered when new and material evidence, in the form of service records, results in the reopening of a claim and a retroactive evaluation may be assigned. See Mayhue v. Shinseki, 24 Vet. App. 273, 277 (2011); 38 C.F.R. § 3.156(c)(1). The Veteran does not argue that relevant service records were the basis for reopening and the record would not support any such argument. The matter was reopened and the claim granted based on private treatment records and a VA examination. The date of the claim to reopen is the correct effective date. The Veteran does not meet the criteria for establishing an effective date prior to February 24, 2011, for the grant of service connection for corneal keratitis. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. On the facts found above, an effective date for the grant of service connection for corneal keratitis earlier than February 24, 2011, is not warranted. There is no reasonable doubt to be resolved as to these issues. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim for an earlier effective date is denied. IV. Rating in Excess of Ten Percent for Corneal Keratitis The Veteran is appealing the original assignment of a disability evaluation for corneal keratitis (dry eye) following award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2014). Also, "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). The regulations do not include a Diagnostic Code relating specifically to corneal keratitis (dry eye). However, eye disabilities are evaluated under Diagnostic Codes (DC) 6000-6099. See 38 C.F.R. § 4.79, Schedule of Ratings - Eye (2015). The Veteran's condition is rated by analogy under DC 6001 (choroidopathy). See 38 C.F.R. § 4.20 (permitting unlisted conditions to be rated by analogy); 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009. Under General Rating Formula for Diagnostic Codes 6000 through 6009, eye conditions should be evaluated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. With respect to incapacitating episodes: A 10 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. A 20 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. A 40 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 60 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The evaluation of visual impairment should be based on central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76(b). However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. Id. The Veteran has complained of dry eye and sensitivity to sunlight with associated pain, itching, and redness. See, e.g., March 2011 Statement in Support of Claim. The Board acknowledges that the Veteran contends that his service-connected corneal keratitis warrants a higher initial evaluation and has carefully reviewed all the evidence, including his lay statements regarding his symptoms. However, in determining the actual degree of disability, medical records and an objective examination by a medical professional are more probative of the degree of the Veteran's impairment. This is particularly so where the rating criteria require analysis of the clinical significance of the frequency, severity, and duration of symptoms, and clinical measurement of visual acuity pursuant to precise criteria, but the Veteran is a layman. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Board finds that the medical opinions of this Veteran, who has no medical training, are not competent evidence of the clinical significance of his eye symptoms. Id. Similarly, the Board is also incompetent to evaluate the clinical significance of the reported symptoms, in contrast to applying the rating criteria in light of the competent medical evidence. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991) (Board may not make independent medical assessments); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). However, the Board will consider the Veteran's subjectively reported symptoms in the context of the medical evidence of record. Private treatment records from July 2009 through March 2011 consistently indicate corrected distance vision of 20/25 in the right eye and 20/20 in the left eye. The records reflect suspected glaucoma with, in March 2011, a nuclear sclerotic cataract on the right. Otherwise, a notation of posterior vitreous detachment in the right eye in February 2010, and a diagnosis of dry eye syndrome are the most significant abnormalities. No incapacitating episodes were noted. The Veteran underwent a VA examination in April 2011 where he was diagnosed with dry eye with resulting corneal keratitis and a history of uveitis. The examiner indicated that there were not more than three (3) diopters of spherical correction between the eyes. The Veteran had corrected distance vision of 20/20 in both eyes. Otherwise, the examiner found abnormalities of the sclera/conjunctiva (1+ injection in both eyes) and the cornea (arcus superficial punctate keratitis in both eyes), but found no abnormality in the lacrimal duct function, no abnormality in the eyelids, no chronic conjunctivitis, no residuals of eye injury, no lagophthalmos, no symblepharon, no ptosis, no nystagmus, no eyelash loss, and no eyebrow loss. The VA examiner noted presbyopia. A June 2012 letter from his private physician summarizes his recent treatment and medical findings. In May 2012, the Veteran had corrected vision of 20/20 in the right eye, 20/20 in the left eye. Confrontational visual fields, stereoscopic and color vision were full and normal for both eyes. The conjunctiva was non-injected and the cornea clear. The other findings were largely normal besides diagnoses of chronic dry eye and myopia/presbyopia. The June 2012 examination indicated corrected vision of 20/25 in the right eye and 20/20 in the left eye. External slit lamp revealed inferior superficial punctate keratitis in both eyes. The Veteran was prescribed Restasis in both eyes daily and artificial tears as needed. The medical records do not indicate that the Veteran has had incapacitating episodes having a total during of two weeks or more. Therefore, his eye condition does not meet the criteria for any rating higher than 10 percent disabling under the General Rating Formula for Diagnostic Codes 6000 through 6009. The medical records further establish that the Veteran's corrected distance vision does not meet or more closely approximate the criteria for any compensable rating based on visual acuity. See 38 C.F.R. § 4.79, DC 6066 (noncompensable rating for corrected distance vision of 20/40 or better in both eyes). The Veteran does not have any of the conditions associated with DCs 6010 or 6011, 6014-6026, 6029-6037, or 6061-6065. The Veteran has no impairment of his visual fields (DC 6080), no scotoma (DC 6081), and no impairment of muscle function (DCs 6090, 6091). The Veteran has been diagnosed with glaucoma, but there is no indication that the glaucoma is associated with his service-connected disabilities. In any case, a minimum evaluation of 10 percent is provided where the condition does not warrant a higher rating based on visual impairment or incapacitating episodes. 38 C.F.R. § 4.79, DCs 6012 and 6013. In other words, evaluating the Veteran under either of those provisions instead of DC 6001 would provide no benefit and assigning a rating under those provisions in addition to 6001 for his claimed symptoms would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The Veteran has been diagnosed with a cataract in the right eye. Again, there is no indication in the medical records that the cataract is associated with his service-connected conditions (rather than glaucoma). In any case, preoperative cataracts are evaluated based on visual impairment. 38 C.F.R. § 4.79, DC 6027. As discussed, the Veteran does not meet the criteria for a compensable evaluation based on visual impairment. The Board has considered rating by analogy to other diagnostic codes, but finds the Veteran would not be entitled to any higher rating if a different diagnostic code were assigned. For example, although the Veteran does not have chronic conjunctivitis, DC 6018 provides for a 10 percent rating for active conjunctivitis and a rating based on residuals (such as visual impairment or disfigurement) if inactive. The record is against finding he meets the criteria for a compensable rating based on visual impairment and there is no indication that his condition causes disfigurement. Similarly, status post corneal transplant (the Veteran has a corneal abnormality) is evaluated based on impairment of visual acuity (the criteria are not met or approximated for any compensable rating) or is assigned the minimum 10 percent rating "if there is pain, photophobia, and glare sensitivity." Therefore, under this diagnostic code too, the Veteran's eye condition would warrant only a 10 percent rating. Thus, the Veteran's service-connected corneal keratitis does not meet or more closely approximate the criteria for any rating in excess of 10 percent disabling under any diagnostic code that might be applicable (including by analogy). The Board further finds, as already noted, that assigning multiple ratings by analogy for his symptoms (primarily dry eyes and pain in sunlight) would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The evidence is not in equipoise, so the benefit of the doubt doctrine has no application. Gilbert, 1 Vet.App. at 53-56. Entitlement to an initial disability rating in excess of 10 percent for service-connected corneal keratitis is denied. V. Entitlement to an Extraschedular Rating Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The evidence of this case does not show an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. Thun v. Peake, 22 Vet. App. 111, 118-19 (2008). A comparison of the level of severity and symptomatology of the Veteran's corneal keratitis with the established criteria found in the rating schedule for that eye disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Specifically, the VA examination and private treatment records documented his visual acuity, other eye abnormalities (addressed in the rating schedule), and symptoms. The objective findings, including the lack of incapacitating episodes, allowed evaluation under the rating schedule. Higher schedular ratings were available, but the Board determined the criteria for any higher ratings had not been met. The Board has considered all of the Veteran's symptoms in assigning a schedular evaluation and those symptoms are either expressly contemplated by the relevant schedular criteria or are reasonably described when considered by analogy. The Veteran is also service-connected for sarcoidosis (10 percent), per rectal fistula (noncompensable), and Bell's palsy (noncompensable). The Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for consideration of an extraschedular rating for his service-connected left ankle disability is not warranted. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 118-19. ORDER Entitlement to an effective date earlier than February 24, 2011, for the grant of service connection for corneal keratitis, dry eye, is denied. Entitlement to an initial evaluation in excess of 10 percent disabling for corneal keratitis, dry eye, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs