Citation Nr: 1113672 Decision Date: 04/06/11 Archive Date: 04/15/11 DOCKET NO. 07-15 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable, evaluation for post-operative scar on bulbar conjunctiva, left eye, claimed as a left eye disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION 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 Veteran served on active duty from November 1951 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 rating decision of the New York, New York regional office (RO) of the Department of Veterans Affairs (VA). The rating decision denied the Veteran's claim for an increased evaluation for the post operative scar on left bulbar conjunctiva. FINDINGS OF FACT 1. There is no evidence of disfigurement, pain or instability for the Veteran's scar of the left eye and no evidence the scar caused limitation of motion. 2. With resolution of the doubt in favor of the Veteran, the Veteran has chronic conjunctivitis with acute symptoms. CONCLUSION OF LAW The criteria for a 10 percent rating for a left eye disorder are approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 6009, 6018, 7800, 7804, 7805 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). The Board has considered this legislation, but finds that, given the favorable action taken below; no discussion of the VCAA at this point is required. Merits of the Claim The Veteran claims that his left eye disorder warrants a compensable rating. With resolution of the doubt in favor of the Veteran, a 10 percent rating, and no higher, is warranted. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2010). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In March 1954, service connection was granted for the post-operative scarring of the bulbar conjunctiva of the left eye, based on an in-service, September 1953 removal of growth in the inner canthus. He filed a claim for an increased rating in August 2005, alleging that his eye disability has worsened and now warrants a compensable rating. The Veteran presently contends that he experiences pain and inflammation of the service-connected eye. In January 2008, the Veteran alleged that he was exposed to chemicals while in service, that may have resulted in chronic conjunctivitis. The Veteran is presently diagnosed as having conjunctivitis. The report of an October 2008 VA examination (and a June 2007 treatment note) reflects that the Veteran may have recurrent chalazia and blepharitis. Thus, the Veteran was first granted service connection for a disorder associated in some aspect with conjunctiva, and presently may have conjunctivitis, although not in and of itself service connected. The Veteran underwent a VA examination in October 2005. The Veteran's left eye scar measured 2 mm in width and 10 mm in length. There was no tenderness on palpation, inflammation, elevation, edema, skin ulceration or breakdown, keloid formation, depression, adherence to the underlying tissue, underlying tissue loss, or limitation of motion or function. The Veteran reported that he considered his left eye scar disfiguring with excessive tearing and relative ectropion. The Veteran underwent another VA examination in November 2005. The examiner noted the scar as 2 millimeters (approximately .079 inches) by 10 millimeters (approximately .394 inches), on the left inner canthus, and disfiguring. In June 2006 treatment records, the Veteran reported excessive tearing, and gritty and dry eyes upon awakening. The optometrist assessed dry eye and recommended lubricant ointment and artificial tears. In November 2006, the Veteran was treated in the emergency room for bilateral red and itchy eyes with discharge and a crust in the morning. The Veteran was diagnosed with acute conjunctivitis, viral syndrome. In his December 2006 notice of disagreement, the Veteran stated that his left eye disorder had worsened and become more painful and disfiguring. In a May 2007 statement, the Veteran contended that his left eye is disfigured, painful, and constantly tears. In June 2007, the Veteran was seen for his annual eye examination. He presented with slightly blurred vision and redness with tearing and discharge. The examiner diagnosed the Veteran with chronic blepharitis that the Veteran considers related to the surgery performed during service. The examiner stated that the Veteran had tear stasis and corneal irritation. The Veteran underwent a VA examination in October 2008. The examiner noted the size of the scar as 1/8 by 1/4 inch, on the lower left conjunctiva, and not disfiguring. There was no tenderness on palpation, adherence to underlying tissue, ulceration, breakdown, or elevation. The scar was depressed and lighter in color that the Veteran's skin color. The scar does not result in limitation of motion or loss of use and is not tender on palpation. The examiner did not opine on whether the Veteran's blepheritis was caused by the surgery during service. The Veteran underwent another VA examination in March 2010. The examiner noted that the Veteran's left eye requires continuous medication and the Veteran experiences occasional redness as a result of the treatment. There was no history of incapacitating episodes due to an eye disorder. The Veteran's symptoms include pain, redness, discharge, burning or stinging, and watering. The Veteran has no visual symptoms. The examiner found chronic conjunctivitis that was inactive. The examiner opined that he could not opine on whether the Veteran's visual symptoms, including redness, tears, and discharge, are related to the surgery the Veteran underwent during service without resorting to mere speculation. Staph infestation and an inflammatory process are responsible for chronic meibomitis, deola, and chalazia. The examiner stated that he was not aware of a connection between this syndrome and an excised benign melanoma that had been present near his left eye over 50 years prior. In November 2010, an addendum to the examination report was issued in which the examiner stated that the Veteran's scar was not elevated or depressed and is not adherent to the underlying tissue. She noted that the skin was indurated but not inflexible and the area does not exceed six square inches. The Veteran experiences redness, discharge, and tearing from his left eye, and the Veteran believes these symptoms are related to his in-service surgery. In a January 2011 statement, the Veteran argues that the in-service surgery caused his conjunctiva nerves not to functions properly, which increases his possibility of infection and allows for the symptoms he is experiencing. When a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. 38 C.F.R. § 4.20. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." 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. Accordingly, the Board will consider rating criteria for both scars and eye disorders for the Veteran's disability. With regard to scars, two sets of rating criteria are applicable to this claim. Prior to October 23, 2008, under Diagnostic Code 7800, disfigurement of the head, face, or neck with one characteristic of disfigurement warrants a 10 percent evaluation. Disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent evaluation. Disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent evaluation. Disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). The eight characteristics of disfigurement are: scar five or more inches (13 or more centimeters) in length; scar at least one-quarter inch (0.6 centimeters) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper- pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Id. at Note (1) (2008). The Veteran's scar does not meet any of the characteristics of disfigurement and therefore, does not warrant a compensable rating under this Diagnostic Code. Under Diagnostic Code 7803, a 10 percent rating is warranted for unstable superficial scars. This is the maximum rating for this code. There is no clinical evidence of record to establish that the veteran's left eye scar is unstable in nature and therefore this code is not for application. Under Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. Ten percent is the maximum rating for this code. There is no clinical evidence of record to establish that the veteran's left eye scar is painful on examination and therefore this code is not for application. Under Diagnostic Code 7805, scars may also be rated based on limitation of function of affected part. As discussed below, the Board has considered the effects of the Veteran's scar on the function of his eye. Effective October 23, 2008, VA revised the criteria for the evaluation of scars. 73 Fed. Reg. 54,710-12 (Sept. 23, 2008). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003). The revised criteria may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, VA must apply the new provisions from their effective date. Under the most recent criteria in effect from November 2008, Diagnostic Code 7800, ratings may be based on the number of characteristics of disfigurement present. The eight characteristics of disfigurement, as listed in Note 1, include the following: (1) scar five or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper- pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurate and inflexible in an area exceeding six square inches (39 square centimeters). A rating of 10 percent requires one characteristic of disfigurement. A rating of 30 percent is warranted where there are two or three characteristics of disfigurement, a rating of 50 percent is warranted where there are four characteristics of disfigurement, and a rating of 80 percent is warranted where there are six or more characteristics of disfigurement. Ratings of 30, 50, and 80 percent are also warranted where there is visible or palpable tissue loss and additional symptomatology. Diagnostic Code 7804 pertains to evaluation of scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, 20 percent rating for three or four scars, and 30 percent rating for five or more scars. Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that where one or more scars are both unstable and painful; add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under 7804 when applicable. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. A rating is to be assigned on the basis of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under another appropriate diagnostic code. As discussed below, the Board has considered the functional effects of the Veteran's in-service injury on his eye and will analyze his disorder under the appropriate criteria for rating disorders of the eye. With regard to his scar, the Board has considered the relevant diagnostic codes for the evaluation of scars. The Veteran does not meet any of the characteristics for rating for disfigurement and his scar is neither unstable nor painful. Accordingly, under the old and revised criteria for the rating of scars, a compensable evaluation cannot be assigned. With regard to rating the Veteran's disorder as an eye injury, the criteria for evaluating eye disabilities were revised effective December 10, 2008. See 73 Fed. Reg. 66,543 (November 10, 2008) (codified, in part, at 38 C.F.R. § 4.84). The Board is required to consider the Veteran's claim in light of both the former and revised standards to determine whether an increased rating for his eye scar is warranted. The amended criteria, however, is effective only from December 10, 2008. Accordingly, the revised regulation is not applicable until December 10, 2008, even if the revised regulation is more favorable to the Veteran than the prior regulation. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. Prior to December 10, 2008, Diagnostic Code 6009, an unhealed injury of the eye, in chronic form, is to be rated from 0 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 active pathology. On and after December 10, 2008, Diagnostic Code 6009, an unhealed injury of the eye, is to be rated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79. For a compensable rating to be warranted for an eye disorder based on incapacitating episodes, there must be incapacitating episodes having a total duration of at least one week over the past twelve months. 38 C.F.R. § 4.79 (2010). Here, however, there is no assertion or evidence that the Veteran has visual impairment or incapacitating episodes of symptoms due to his eye disorder. Therefore, a higher rating is not warranted on this basis. Consideration of Diagnostic Code 6018 is also in order. Under the old version of DC 6018, a maximum 10 percent disability evaluation was warranted for conjunctivitis when the condition is active with objective symptoms. Under the revised version of Diagnostic Code 6018, a maximum 10 percent rating is warranted for active conjunctivitis with objective findings such as red, thick conjunctivae, mucous secretion, etc. The Veteran has consistently reported that his eye burns, tears excessively, and that he has an inordinate amount of discharge at the inner canthus. He has been treated for chronic conjunctivitis, with acute symptomology and blepheritis. The Veteran is competent to testify as to his symptoms and the Board finds him credible in this regard. In view of the foregoing, with resolution of the doubt in favor of the Veteran, the Board finds that the Veteran's symptoms approximate the criteria for the assignment of a 10 percent rating under DC 6018, under both the old and revised criteria. See 38 C.F.R. § 4.7. Therefore, a 10 percent rating is warranted, effective from August 24, 2005. This is the highest rating available under DC 6018 and, as discussed above, the Veteran's symptoms do not warrant a higher rating under any alternate criteria. Extraschedular Rating As a final point, the Board finds that there is no showing that the Veteran's eye disorder reflects so exceptional or so unusual a disability picture as to warrant the assignment of a higher rating on an extra-schedular basis. The condition is not productive of marked interference with employment that is not contemplated by the current rating, or required any, let alone, frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. In the absence of these factors, the criteria for submission for assignment of an extra-schedular rating are not met. Thus, the Board is not required to remand this claim 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, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating of 10 percent, but no higher, is granted for the Veteran's post-operative scar on bulbar conjunctiva, left eye. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs