Citation Nr: 0839672 Decision Date: 11/18/08 Archive Date: 11/25/08 DOCKET NO. 04-32 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected left eye corneal abrasion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Associate Counsel INTRODUCTION The veteran had active duty service from October 1998 to November 2003 with prior active and reported reserve service. This matter came to the Board of Veterans' Appeals (Board) from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in March 2008 for further development. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The veteran appeared at a personal hearing at the RO in December 2004. A transcript is of record. FINDING OF FACT The veteran's service-connected left eye corneal abrasion is manifested by pain resulting in no more than slight episodic incapacity, but with no compensable impairment of visual acuity CONCLUSION OF LAW The criteria for entitlement to a disability evaluation of 20 percent (but no higher) for the veteran's service-connected left eye corneal abrasion have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.75, 4.84a and Codes 6099-6001 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA 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. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in February 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO also provided the appellant with additional notice in March 2006, July 2006, and May 2008 subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the March 2006, July 2006, and May 2008 notices were not provided prior to the March 2004 adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a July 2007 supplemental statement of the case (following the provision of notice in March 206 and July 2006) and in a July 2008 supplemental statement of the case (following the provision of notice in May 2008). The veteran and her representative have not alleged any prejudice as a result of the untimely notification, nor has any been shown. At this point the Board acknowledges the decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) which noted that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The Court further indicated, among other things, that if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. However, the Board believes that the nature of the present appeal is somewhat different from the situation addressed in Vazquez-Flores. The present appeal involves the issue of a higher initial rating, not a claim for an increased rating. A review of the record shows that the RO, in connection with the veteran's original service connection claim provided the veteran with adequate VCAA notice in a February 2004 letter prior to the March 2004 adjudication of the claim which granted service connection. In Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), the Court 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 38 U.S.C.A. § 5103(a) (West 2002), notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Also see Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007). In line with the reasoning set forth in these judicial decisions, it appears that the notice requirements addressed by the Court in Vazquez-Flores, supra, do not apply to initial rating claims such as the one now on appeal to the Board. Duty to Assist VA has obtained service and VA treatment records, assisted the veteran in obtaining evidence, and afforded the veteran VA examinations in February 2004, December 2004, August 2005, and June 2007. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran and her representative have not contended otherwise. On VCAA notice response form signed in May 2008, the veteran marked the appropriate box to indicate that she had no other information or evidence to give VA to substantiate her claim and to decide her claim as soon as possible. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The present appeal involves the veteran's claim that the severity of her service-connected left eye corneal abrasion warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The veteran's service-connected left eye corneal abrasion has been rated by the RO under the provisions of Diagnostic Code 6099-6001. Diagnostic Code 6099 indicates that the veteran's left eye corneal abrasion is rated by analogy under a closely related injury (Diagnostic Code 6001-Keratitis) in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under Diagnostic Code 6001, keratitis in chronic form is to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. Minimum rating during active pathology is 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6001. The Board notes that for an examination of visual acuity, 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. Under Diagnostic Codes 6078 to 6079, a rating of 10 percent is warranted when vision in one eye is 20/50, 20/70, or 20/100 and vision in the other eye is 20/50 (under Diagnostic Code 6078) or 20/40 (under Diagnostic Code 6079). 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079. Ratings ranging from 20 percent to 100 percent require vision in one eye ranging from 20/70 to 5/200, blindness in 1 eye, anatomical loss of 1 eye, blindness in both eyes having only light perception, or anatomical loss in both eyes. 38 C.F.R. § 4.84a, Diagnostic Codes 6071, 6072, 6073, 6074, 6075, 6076, 6077, 6078. Post service treatment records show that the veteran was seen in January 2004 on two occasions. On the first occasion, the veteran was seen for left eye abrasion. On a scale of 1 to 10 (with 10 being the worst pain), the veteran rated her pain a 7 and noted that it was sharp and constant. Her visual acuity was 20/20 for the right eye, 20/40 for the left eye, and 20/20 for both eyes. On the second occasion, she was seen for left eye pain and blurred vision that she had experienced for three days at the time. The veteran reported that the intermittent left eye erosion had worsened. It was observed that there was no eye discharge. The veteran received an injection and the diagnoses was corneal abrasion. Listed in the plan was bacitracin and vicodin. The veteran was afforded a VA examination in February 2004. She reported experiencing sudden pain in the left eye in 1999. She further reported that she was extremely photophobic for several days. It was determined that she had corneal epithelial erosion. The veteran said that she experienced recurrent corneal erosion three times per month and that since being on Accutane, she noticed that her eyes were drier and that the recurrent corneal erosion occurred more often. Upon examination, it was noted that the veteran had 20/20 vision in both the right eye and left eye. The optometrist noted that the stained cornea revealed a large oval area of "weakened" corneal epithelium, which is the source of the veteran's corneal erosion. The diagnosis was recurrent corneal erosion. The veteran was later seen on several occasions in April 2004. On the first occasion, it was noted that the abrasion measured approximately .90 mm across and no foreign bodies were found. It was further noted that the veteran used a lot of artificial tears medication. The assessment was corneal abrasion. On another occasion, she reported constant pain for two weeks at that time. Before her current episode of pain, the veteran reported that she only experienced pain once a month since 1998. On the next occasion dryness was noted. The assessment was recurrent epithelial erosion. A notation was made that the episode resolved. Visual acuity was 20/25 for the right eye and 20/25 -2 for the left eye. In a substantive appeal received September 2004, the veteran reported that she had not gone more than a week without problems with the cut on her eye, and that she was missing work because she could not see when the cut opened and could not drive. She stated that she needed to buy drops and ointment weekly. She continued that the VA examination was done when her cut was not open, which allowed her to see. She stated that she could not see out of that eye when the cut was open, which she stated was most of the time. At a DRO hearing held in December 2004, the veteran testified that she was not able to see the doctor every time her flare- ups occurred since it occurred around 2:00 a.m. or 3:00 a.m. and that she was not able to drive whenever she had flare- ups. The veteran explained that her husband was in another country at the time. She further testified that she used Erythromycin drops every night as a preventative measure. The veteran stated that driving was hard to do since she had excruciating pain. On a scale of 1 to 10 (with 10 being the worst pain), the veteran rated it a 10. In addition, she stated that most of the time, she had flare-ups at night, and it took about an hour or two and sometimes days before the pain subsided. The veteran was afforded another VA examination in December 2004, and the claims file was reviewed. The veteran reported pain associated with awakening that usually lasted 2 to 3 days but occasionally lasted only a few hours. Visual symptoms noted were tearing and difficulty opening eyes during episodes. Visual acuity in the right eye uncorrected near was 20/20 and far was 20/20-1 and in the left eye uncorrected near was 20/20-1 and far was 20/30-1. A slit lamp examination was conducted with lids/lashes and lens described as clear. Conjunctiva/sclera was noted as quiet. Minimal superficial punctuate defects 1 to 2 lower cornea were noted. Anterior chamber was observed as deep and clear. Iris was deemed normal. The diagnosis was documented history of left eye recurrent erosions (last episode documented April 2004) and history of left eye corneal abrasion. An addendum reflected that corneal examination with florescent dye showed epithelial irregularity. A March 2005 VA treatment record shows that the veteran was on eye ointment and had a past medical history of recurring abrasion on left eye. In an August 2005 VA examination, the veteran's claims file was reviewed. The veteran reported an increase in the number of episodes of pain waking her up in the middle of the night occurring four times a week and lasting 30 to 45 minutes. Visual symptoms listed were tearing and blurring of vision. Slight lamp examination resulted in the following findings: visual acuity in the right eye and left eye uncorrected near was 20/20 and far was 20/20-; clear right eye intraocular pressure was 18; lids/lashes, and lens were described as clear; inferior temporal epithelia swirls and cysts especially along basement membrane, small epithelial defect inferior temporal left eye were noted; conjunctiva/sclera was deemed quiet; anterior chamber was noted as deep and clear; and iris was normal. The diagnosis was left eye epithelial defect in area of abnormal epithelium and redundant basement membrane inferior temporal; history of left eye corneal abrasion; history of left eye recurrent erosion syndrome (recurrences documented 2001-2004 approximately every 6 months). The veteran reported epithelial puncture treatment in the last 6 months. VA treatment records show that she was seen in March 2006. She stated that the longest she had never gone between episodes since a VA doctor performed stromal puncture. Distance visual acuity for the left eye revealed 20/20 and 20/20 -1 vision. Slit lamp examination revealed clean lid margins with no trichiasis. Conjunctiva was noted as 2+ injection and no masses. For the cornea, it was noted that there was 3 mm of area of loose epithelium with minimal stain uptake and mild epithelial edema. Anterior chamber was noted as deep with no inflammation. Iris had no masses, rubeosis or synechia. Lens and anterior various were noted as clear. Assessment was recurrent erosion with no evidence of basement membrane dystrophy. VA treatment records from October 2006 show that the veteran was taking ointment for her left eye at bedtime for dry eyes. Upon physical examination, it was noted that there was sclera non-icteric, pupils were equal, and extra ocular movements were intact. On VA examination in June 2007, the veteran complained of 8- month nightly episodes of recurrent erosion at night and reported not using Muro ointment at night every night. She described the pain as moderate to severe when the episodes did occur. The frequency and duration of periods of incapacitations was reported at 8 times a month for 3 to 6 hours. Visual symptoms were pain and photophobia during the episodes. Visual acuity uncorrected was 20/20 near and far for both right eye and left eye. Intraocular pressure was 18 for both eyes. Slit lamp examination produced the following findings: lids/lashes, conjunctiva/sclera, iris, and lens within normal limits. It was noted that there was inferior central sub-epi fibrosis, inferior corneal sup-epi scarring in both eyes and no evidence of map-dot-fingerprint dystrophy. Anterior chamber was described as deep quiet. An August 2007 VA treatment record shows that the veteran had a past eye history of recurrent corneal erosion in the left eye and that she was seen for refills on erythromycin ointment and sodium chloride drops. Distance visual acuity without correction was 20/20 in both the right eye and left eye. Here, the veteran's vision ranged from 20/20 to 20/25 in the right eye, and from 20/20 to 20/30 in the left eye. Under Table V, the veteran's central visual acuity is noncompensable. Thus, a compensable rating based on visual acuity is not for application. Additionally, there is no evidence of rest-requirement. It appears that the current 10 percent rating has been assigned in recognition of the pain which has required medication. However, at the August 2005 eye examination, it was reported that there were also periods of incapacitation lasted 30-45 minutes. Although this may be viewed as no more than slight episodic incapacity, resolving reasonable doubt in the veteran's favor the Board believes that such impairment together with the consistent reports of pain are sufficient to warrant a 20 percent rating under Diagnostic Code 6001. Moreover, again resolving all reasonable doubt in the veteran's favor, the Board believes that the 20 percent rating is warranted during the entire period covered by this appeal; that is, from November 7, 2003. Fenderson. However, the Board is unable to conclude that a rating in excess of 20 percent is warranted based on the current severity of the eye disability. The objective evidence does not persuasively suggest that the disability is of such severity to warrant a higher rating when the pertinent symptoms are considered. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. In a substantive appeal received September 2004, the veteran reported that she was missing work because she could not see when the cut opened leaving her unable to drive; and she further noted the pain that accompanied it. At a hearing in December 2004, the veteran reported that the pain had prevented her from working three days, but the last time, it did not prevent her from working at all because she medicated her eyes with drops until she went to work. Even when she did work, she was not able to see the computer screen. She further stated that there were flights in the middle of the night, but that she could not make the flights because she could not see. She stated that she kept missing work and that she was only a temp who the employer could let go. In a letter received in November 2005, the veteran state that she has missed several days of work because of lost vision and that she could not drive herself to the hospital due to her inability to see. However, during a July 2007 VA examination for her knee, the veteran revealed that she worked full time at the Department of Agriculture as a human resource assistant. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 20 percent rating (but no higher) is warranted for the veteran's service-connected left eye corneal abrasion, effective from November 7, 2003. To this extent, the appeal is granted subject to applicable laws and regulations governing payment of VA monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs