Citation Nr: 1105303 Decision Date: 02/08/11 Archive Date: 02/18/11 DOCKET NO. 06-03 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a right eye pterygium. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from April 1946 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. This claim was previously remanded by the Board in September 2009 for additional evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU benefits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right eye pterygium has not resulted in impaired visual acuity of at least 20/50 in one eye and 20/70 in the other eye. 2. There is no evidence of loss of visual acuity, disfigurement or conjunctivitis due to the Veteran's service-connected right eye pterygium. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a right eye pterygium have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321(b)(1), 3.350, 3.383, 4.1- 4.7, 4.16(b), 4.21, 4.75, 4.76, 4.78, 4.79, 4.80, 4.84(a), Diagnostic Codes 6063 to 6079 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in February 2005, March 2006 and September 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of his disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claims. Thus, the duties to notify and assist have been met. Increased disability rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2010). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). In rating impairment of visual acuity, the best distant vision obtainable after best correction with glasses will be the basis of rating, except in cases of keratoconus in which contact lenses are medically required. 38 C.F.R. § 4.75. Diagnostic Code 6034 provides that pterygium is to be rated on loss of vision, if any. A noncompensable (0 percent) rating is warranted under Diagnostic Code 6066, covering decreased visual acuity, when vision in both eyes is 20/40. A 10 percent rating is assigned when the vision in one eye is 20/50 and vision in the other eye is 20/40 or 20/50. 38 C.F.R. § 4.79, Diagnostic Code 6066. The ratings increase in 10 percent increments according to the levels of vision impairment with the greatest award of 100 percent assignable for visual acuity of 5/200 in each eye. 38 C.F.R. § 4.84(a), Diagnostic Codes 6063-6078 (2008). Visual impairment can also be rated on the basis of loss of field of vision. 38 C.F.R. § 4.76. However, in this case, there is no evidence of visual impairment based on the loss of field of vision due to the Veteran's service-connected right eye pterygium. During the pendency of the appeal, the criteria for rating eye disabilities were amended effective December 10, 2008, but these amended criteria govern cases only when the claim is filed on or after that date. 73 Fed. Reg. 66543 (November 10, 2008). Here, because the Veteran filed his claim prior to December 10, 2008, the appeal will be considered under the prior criteria. 73 Fed. Reg. 66543 (Nov. 10, 2008). The Veteran contends that he is entitled to a disability rating in excess of 10 percent for his service-connected right eye pterygium. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's right eye pterygium has been no more than 10 percent disabling at any time during the pendency of this appeal. As such, an increased disability rating is not warranted. For historical purposes, the Veteran has been service-connected for a right eye pterygium, rated as noncompensable, since November 1953. In November 2004, VA received a claim from the Veteran seeking a compensable disability rating. In a May 2005 rating decision, the RO increased the Veteran's disability rating to 10 percent, effective as of November 10, 2004. In May 2005, VA received a notice of disagreement from the Veteran, indicating that he was not satisfied with the 10 percent disability rating. The Veteran appealed this rating to the Board in February 2006. Upon filing his claim for an increased disability rating, the Veteran was afforded a VA examination of the eye in February 2005. It was noted that the Veteran had a history of glaucoma secondary to trauma he sustained as a child. It was also noted that the Veteran had a history of pterygium excision in 1952. Corrected visual acuity of the right eye was 20/50 for far vision and 20/60 for near vision. Corrected visual acuity of the left eye was 20/30 for far vision and 20/40 for near vision. The Veteran was noted to have a right superior field defect compared to a perfectly normal field on the left. The Veteran was diagnosed with a history of pterygium excision bilaterally with glaucoma secondary to trauma in the right eye. There was also evidence of mild nuclear sclerotic and mild cortical type cataract and early macular degenerative changes. According to a December 2006 VA ophthalmology note, the Veteran was six weeks status post cataract extraction of the left eye. It was noted that the Veteran also suffered from angle recession glaucoma of the right eye status post trauma as a child. Subsequent VA treatment records demonstrate that the Veteran underwent surgery for a cataract of the right eye in March 2007. Upon follow up treatment in April 2007, it was noted that the Veteran was seeing better, and that he had a visual acuity of 20/25 in the right eye and of 20/20 in the left eye. Upon evaluation in June 2007, the Veteran was found to have a corrected visual acuity of 20/25 in the right eye and of 20/50 in the left eye. According to a November 2008 VA outpatient treatment note, the Veteran suffered from glaucoma associated with ocular trauma. The record also contains a VA eye consultation from August 2009. Examination revealed corrected visual acuity of the right eye of 20/30 (pinholing to 20/20) and corrected vision of the left eye of 20/20. The examiner diagnosed the Veteran with glaucoma of the right eye. It was noted that the actual etiology of this was unclear, as it could have been from the previous trauma or primary open angle glaucoma. It was noted that there was a significant rim notch and correlative field deficit. The Veteran was most recently afforded a VA examination of the right eye in July 2010. It was noted that the Veteran had bilateral pterygium excisions three months prior to his discharge from active duty, and since then, the right pterygium had recurred a small amount. The examiner also noted that as a child, the Veteran had a severe injury to the right eye with angle recession which eventually developed into glaucoma in the right eye. Corrected visual acuity of the right eye was 20/20 for far vision and 20/20 for near vision. The corrected visual acuity of the left eye was 20/25 for far vision and 20/25 for near vision. Visual field examination revealed fields to be attached on the right with a Bjerrum-type scotoma from glaucoma. Left eye visual field was normal. The examiner diagnosed the Veteran with pterygium on the right status post excision with recurrence and a pterygium on the left status post excision. Diagnoses of bilateral pseudophakia, trauma to the right eye with secondary glaucoma, dry eye syndrome, bilateral posterior vitreous detachment, refractive error and presbyopia were also assigned. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability rating in excess of 10 percent for a right eye pterygium. According to Diagnostic Code 6034, pterygium is to be evaluated based on visual impairment, disfigurement, or conjunctivitis, depending on the particular findings. There has been no finding of disfigurement or conjunctivitis in the present case. A higher disability rating of 20 percent is warranted for impairment of visual acuity when vision in one eye is 20/70 and the other eye is 20/50. According to the February 2005 VA examination, the Veteran had corrected distant vision of the right eye of 20/50 with corrected distant vision of the left eye of 20/30. The July 2010 VA examination revealed corrected distant vision of 20/20 in the right eye with corrected distant vision of 20/25 in the left eye. This evidence demonstrates that a higher disability rating of 20 percent based on impairment of visual acuity is not warranted. There is also no evidence to demonstrate that the Veteran would be entitled to a higher disability rating based on loss of field of vision. According to the July 2010 VA examination, the Veteran's right eye visual field was affected by a Bjerrum-type scotoma that resulted from the Veteran's glaucoma. As already noted, the evidence of record has related the Veteran's glaucoma to childhood trauma, and not his service-connected pterygium. The record contains no additional evidence suggesting that the Veteran's experiences impaired field of vision as a result of his service-connected right eye pterygium. Therefore, this evidence does not demonstrate entitlement to a higher disability rating based on loss of visual field. The Board recognizes that the Veteran believes he is entitled to a disability rating in excess of 10 percent. However, the Veteran has provided no testimony to demonstrate that he meets the necessary criteria for a higher disability rating. The preponderance of the evidence of record in this case fails to demonstrate that the Veteran's service-connected pterygium is in and of itself more than 10 percent disabling. The record demonstrates that the Veteran suffered serious trauma to the right eye as a child, and as a result, he now suffers from glaucoma. However, the Veteran is not service-connected for this condition. The Board has also considered whether the Veteran's right eye pterygium presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Nonetheless, the Board is remanding the Veteran's TDIU claim, so there will be additional consideration on remand of whether his service-connected right eye pterygium precludes him from obtaining and maintaining substantially gainful employment. Based upon the guidance of the United States Court of Appeals for Veterans Claims (Court) in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, as outlined above, the evidence of record demonstrates that the Veteran's service-connected right eye pterygium has been no more than 10 percent disabling at any time during the pendency of the claim. As such, staged ratings are not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability rating in excess of 10 percent for a right eye pterygium must be denied. ORDER A disability rating in excess of 10 percent for a right eye pterygium is denied. REMAND The Veteran contends that he is unemployable as a result of his service-connected right eye pterygium. According to his February 2006 appeal to the Board, the Veteran indicated that he could no longer perform his occupation as a truck driver because he was unable to drive at night and he would no longer be able to pass a driving test to keep his license as a trucker. Regrettably, further evidentiary development is necessary before appellate review may proceed on this matter. In the September 2009 remand, the Board noted that the Veteran had yet to be provided with a VA examiner's opinion regarding whether his service-connected disability prevented him from securing or following a gainful occupation. The RO/AMC was instructed to obtain an opinion on this matter before appellate review could proceed. However, a review of the evidence of record demonstrates that no such opinion was provided during the Veteran's July 2010 VA examination. While the Veteran may not meet the percentage requirements for an award of TDIU laid out in 38 C.F.R. § 3.340, entitlement to the benefit on an extraschedular basis may be considered by the Director of the Compensation and Pension Service when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, even though percentage requirements are not met, with consideration given to the Veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). Because of the above, additional remand is necessary as certain action requested in the September 2009 Board remand has not been performed in full. Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Accordingly, the case is REMANDED for the following action: 1. The Veteran's claim should be returned to the VA physician who performed the July 2010 VA examination so that an opinion regarding unemployability may be provided. If this physician is no longer available, the Veteran should be scheduled for a new VA examination before an appropriate physician. The Veteran's claims file and a copy of this remand must be provided to the examining physician upon examination. The examiner is asked to comment on the impact of the Veteran's service-connected right eye pterygium, if any, on his employment and activities of daily life. The examiner should discuss all impairment caused by the Veteran's service-connected disability, and state the impact that these symptoms have on his ability to work, to include whether the right eye pterygium prevents the Veteran from securing or following a substantially gainful occupation. A complete rational for any opinion expressed must be provided. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs