Citation Nr: 0813689 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-30 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for bilateral keratoconus. 2. Entitlement to an initial evaluation in excess of 10 percent for hiatal hernia with esophagitis and gastroesophageal reflux disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from May 1980 to September 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The veteran is medically required to wear contact lenses for his bilateral keratoconus. Bilateral keratoconus is manifested by no worse than a corrected visual acuity of 20/25 in the right eye and 20/25 in the left eye. 2. Hiatal hernia with esophagitis and gastroesophageal reflux disease is not manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation 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 6035 (2007). 2. The criteria for an initial evaluation in excess of 10 percent for hiatal hernia with esophagitis and gastroesophageal reflux disease have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7346 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's duty to notify and assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements require VA to notify the veteran of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Both of the veteran's claims for increased ratings are downstream issues from his claims for entitlement to service connection bilateral keratoconus and hiatal hernia. For example, VA awarded service connection for these disabilities, and the veteran subsequently filed a notice of disagreement arguing he warranted higher evaluations. In these types of circumstances, VA is not required to issue a new VCAA letter. VAOPGCPREC 8-2003 (Dec. 2003). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case if the disagreement is not resolved. Id. VA issued a statement of the case addressing both the increased-rating claims in November 2004. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. Id. VA obtained medical records from Walter Reed and Bethesda Medical Center. The veteran had indicated having received treatment from the Naval Medical Center in Quantico, Virginia. VA attempted to obtain those records and was informed that there were no records for the veteran. VA properly informed the veteran of its inability to obtain these records. VA has provided the veteran with examinations in connection with his claims. The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claims. 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). II. Increased Ratings The veteran contends that his disabilities are worse than the current 30 percent and 10 percent evaluations contemplate. Under the applicable criteria, disability evaluations 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 (2007). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran is contesting the disability evaluation that was assigned following the grant of bilateral keratoconus and hiatal hernia with esophagitis and gastroesophageal reflux disease. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found, which is called "staged" ratings. Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (applying staged ratings when assigning an increased rating in a manner similar to what is done at the initial rating stage pursuant to Fenderson). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Bilateral keratoconus 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. 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, Diagnostic Codes 6066, 6070, 6073, 6076 (2007). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent. In this regard, none of the medical evidence contains visual acuity readings that meet the standards required for an increased rating under the diagnostic criteria discussed above. For example, a May 2002 examination found corrected visual acuity of 20/20 (both distant and near) in the right eye and 20/20 (both distant and near) in the left eye. A May 2003 VA examination report shows corrected visual acuity of 20/20 far and 20/20 near in the right eye and 20/25 far and 20/20 near in the left eye. An April 2004 examination found corrected visual acuity of 20/25 distant and 20/20 near in the right eye and 20/20 (both distant and near) in the left eye. A June 2007 VA examination report shows corrected visual acuity of 20/20 far and 20/20 near in the right eye and 20/25 far and 20/20 near in the left eye. 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, 1 Vet. App. at 54-56. Accordingly, the Board finds that the veteran's service-connected keratoconus has been manifested by a corrected visual acuity of 20/25 in the right eye and 20/25 in the left eye (which are the worst corrected visual acuity findings in the record). 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 Diagnostic Code 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 the veteran's substantive appeal, he asserted that a higher rating for his bilateral keratoconus was warranted because his eyes have continued to change between his yearly eye examinations and that his visual acuity was worsening. 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. As a result, a rating in excess of 30 percent for bilateral keratoconus on this basis must be denied. 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, 1 Vet. App. at 55. The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). The overall disability picture with respect to the service-connected bilateral keratoconus does not show any significant impairment beyond that contemplated in the 30 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). B. Hiatal hernia with esophagitis and gastroesophageal reflux disease The RO has rated the veteran's service-connected under Diagnostic Code 7346, which addresses hiatal hernia. Where there are symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, a 30 percent disability evaluation is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 10 percent disability evaluation is assigned where there are two or more of the symptoms listed for the 30 percent evaluation, with less severity. Id. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for hiatal hernia with esophagitis and gastroesophageal reflux disease. Essentially, the veteran's symptoms do not rise to the level contemplated by the 30 percent evaluation. For example, a February 2002 medical record shows that the veteran reported he was feeling well. He denied vomiting blood or any blood in his stool. In April 2002, he reported intermittent symptoms of gastroesophageal reflux disease for several years. He stated he would take Aciphex intermittently. He noted occasional lower abdominal distress. He had pain and itching with bowel movements. This does not show persistent gastrointestinal symptoms. In September 2002, he reported having "a lot of heartburn lately," although the May 2003 VA examination report shows the veteran denied nausea, vomiting, and stomachache. He also denied vomiting blood or passing dark-colored stools. It was noted the veteran was functionally impaired when having a severe attack, which would last a couple of days. The Board does not find that this is not indicative of persistent, recurrent epigastric distress or considerable impairment of health. A December 2003 medical record shows that the veteran reported his symptoms of gastroesophageal reflux disease had resolved with Aciphex. The examiner stated that the gastroesophageal reflux disease was "well controlled." At the June 13, 2007, VA examination, the veteran reported nausea, chest pain, heartburn, pain above the stomach, vomiting, pain in the right arm, and constant symptoms. However, at a June 19, 2007, physical at the Bethesda Medical Center, the veteran denied any gastrointestinal symptoms. He stated he had a normal appetite and would get heartburn if he did not take his medication faithfully. He denied abdominal pain and stated there was no change in stool. There was also no bright red blood per his rectum. The examiner also reported the veteran denied any systemic symptoms, denied feeling tired or poorly, denied lethargy, and denied any recent weight change. Thus, while the June 13, 2007, VA examination would indicate that the veteran might meet the criteria for the 30 percent evaluation, the lack of symptoms the veteran reported at the physical less than one week later would not establish that the service-connected was 30 percent disabling. The Board has accorded more probative value to the lack of symptoms the veteran reported at the June 19, 2007, physical. The lack of symptomatology described by the veteran at this physical resembles those he reported in 2002 and 2003. While the veteran has reported increased symptomatology that would fall under the 30 percent evaluation, the Board finds that the preponderance of the evidence is against a finding that the veteran's has those systems on a persistent basis. Additionally, the Board finds that the veteran's report of symptoms at the VA examination is exaggerated and does not find them credible. Even though he reported multiple symptoms associated with his service- connected disability, the VA examiner stated that the veteran's gastrointestinal condition did not cause malnutrition or significant anemia. This is also evidence against a finding of considerable impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346. In sum, based on the severity of symptoms clinically recorded, the nature of these symptoms and the absence of clinical evidence of any impairment in health due to the gastrointestinal disorder, the Board finds that the preponderance of the evidence is against the claim that he warrants an evaluation in excess of 10 percent. The benefit- of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected hiatal hernia with esophagitis and gastroesophageal reflux disease does not show any significant impairment beyond that contemplated in the 10 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. ORDER An initial evaluation in excess of 30 percent for bilateral keratoconus is denied. An initial evaluation in excess of 10 percent for hiatal hernia with esophagitis and gastroesophageal reflux disease is denied. ________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs