Citation Nr: 1306476 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 08-24 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable evaluation for bilateral keratoconus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to August 1986 and from February 2004 to November 2004. He initially was in the Florida Army National Guard and then served in the United States Naval Reserve. He had periods of active duty for training (ACDUTRA) and inactive duty training (IDT). This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The rating decision granted the Veteran's claim of entitlement to service connection for bilateral keratoconus and assigned a noncompensable rating effective November 2004. The rating decision further noted that the claim was being awarded on an aggravation basis, and that the pre-service level of disability was 30 percent. Due to the offset for the degree of in-service aggravation, a noncompensable evaluation was assigned. The Veteran appealed the aggravation aspect of his claim and stated his disability warranted a higher rating. In March 2010, the Veteran, accompanied by his authorized representative, appeared at a hearing held before the undersigned Veterans Law Judge in St. Petersburg, Florida. A transcript of that hearing has been associated with the claims file. The Board remanded this case for further development in June 2010 and 2012. FINDING OF FACT Resolving all doubt in favor of the Veteran, no aggravation offset applies for bilateral keratoconus and the best distant vision obtainable after best correction by medically required contact lenses is 20/40 or better bilaterally. CONCLUSION OF LAW The criteria for an evaluation of 30 percent, but no higher, for the Veteran's keratoconus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.322, 4.1, 4.3, 4.7, 4.22, 4.76, 4.79, Diagnostic Code (DC) 6035 (2008 and 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran received adequate notice regarding his original claim in May 2005. Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran was provided several VA examinations, as well as an opinion, that collectively are fully adequate to rate the claim. All service treatment records as well as private and VA medical records have been received. There has been substantial compliance with the last Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the March 2010 Board hearing shows the Veteran described the symptoms of his disability. The aggravation aspect of the claim was explained to the Veteran and relevant information was solicited regarding this topic. (Transcript, pp 6-7, 10.) Neither the Veteran nor his representative has raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. Legal Criteria and Analysis As an initial matter, the Board will address the aggravation aspect of the Veteran's claim. The Veteran filed his claim for service connection for keratoconus in April 2005 (he was still currently in an active Reserve unit at that time). He claimed that keratoconus began in May 1989; a May 1989 consultation service treatment record in the file showed that he received a stick to the left eye five days prior. A line of duty record from the same month noted a twig in his left eye while on ACDUTRA. In August 2005, the RO denied the claim for service connection for keratoconus in both eyes finding there was no aggravation to a congenital disability. The Veteran filed a notice of disagreement in July 2006, asserting that his keratoconus was aggravated in service. He stated he was overexposed to sunlight and suffered continual irritation caused by dryness and frequent sandstorms while in Iraq. In August 2007, the RO granted service connection for keratoconus on the basis of aggravation and assigned a noncompensable rating effective November 28, 2004, the date the Veteran last separated from active service. The decision stated that for a compensable evaluation for the aggravated keratoconus, visual acuity would have to be worse. In a September 2007 communication, the Veteran contested the 30 percent offset for his disability. Specifically, he alleged that he had an eye injury in 1989 while serving on ACDUTRA and wasn't diagnosed with keratoconus until 1998. October and November 1998 private records reflect eye care. Earlier records in August 1989 and in 1991 show diagnoses of conjunctivitis and corneal ulcer, but not keratoconus. At a March 2010 Board hearing, the Veteran stated his keratoconus diagnosis was based on a twig in his eye in 1989. (Transcript, p 11.) In a May 2009 statement he also clarified that while keratoconus did pre-exist his last deployment, it did not exist prior to his service as a whole. He asserted he had an eye injury in 1989, and irritation/eye rubbing while on ACDUTRA. Other lay statements reveal additional eye incidents that occurred on ACDUTRA and while on active duty. In June 1991, the Veteran had metal shavings enter both eyes while preparing equipment while on a re-scheduled IDT drill at the request of his unit. (See October 2010 statements of the Veteran and his Sergeant.) A June 1991 medical record from Dr. C. confirms that the Veteran reported grinding metal and the shavings went into his eyes, mostly the right. His cornea was within normal limits in the left eye but an ulcer was noted on the right. Follow up reports showed the ulcer gradually improved and resolved. While the Veteran was on active duty in April 2004, a service treatment record noted a diagnosis of keratoconus in both eyes in 2000. He was given the option of medical retirement at that point, but continued reserve duty with a waiver. He had been in Iraq for two weeks. The note stated that at home he mostly wore special contact lenses. In country, he had to rely on prescription glasses and now complained of blurry vision, photophobia and headaches related to map reading and working with computer screens. The progressive condition of keratoconus was noted, as well as worsening visual acuity. The Veteran was to be sent home. After being sent back to the U.S., in September 2004 (while still on active duty) he was struck in the eye by a football. Also, he had had left eye pain. Therapeutic rigid gas permeable contact lenses were ordered for bilateral keratoconus. At separation from active duty in October 2004, his eye injury was noted and his keratoconus was stable. A post-deployment form showed he had an eye injury with bilateral keratoconus and this existed prior to service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). With respect to the Veteran's National Guard and Reserve service, applicable laws and regulations also permit service connection for disability resulting from disease or injury incurred in, or aggravated while, performing active duty for training (ACDUTRA) or inactive duty training (IDT). See 38 U.S.C.A. § 101(22), (24) (West 2002); 38 C.F.R. § 3.6 (2012). Here, the Veteran was granted service connection for bilateral keratoconus under a theory of in-service (active duty) aggravation of a pre-existing condition. Although his eye disability was evaluated as 30 percent disabling, he was assigned a noncompensable rating, offsetting for the pre-service level of disability. Offset is explained in 38 C.F.R. §§ 3.322, 4.22 (2012). In cases involving aggravation by active service the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service or is determined upon the evidence of record to have existed at that time. Id. In such cases, the rater is to attempt to ascertain the degree of the disability existing at the time of entrance into active service and then deduct that from the present degree of disability. Id. This should be done using the rating schedule; the resulting difference will be recorded on the rating sheet. The exception is that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. Id. The Board finds that while initially it appeared the Veteran's disability had preexisted service and had not been aggravated, after consideration by medical personnel, the weight of the evidence is in equipoise in concluding that a chronic eye disability characterized by keratoconus did not preexist service, but rather was incurred therein. As stated, a November 1998 private record documents the Veteran reported a past diagnosis of keratoconus. An October 2000 service treatment record shows the Veteran had to wear hard contact lenses for his keratoconus and in December 2002 a letter from Dr. H. shows the Veteran's keratoconus was stable with rigid gas permeable contact lenses as well as glasses. In September 2003, a report of medical examination showed that a waiver was recommended for his keratoconus. In April 2005, a VA optometrist advised the Veteran to file for service connection. In June 2005, a VA examination report showed complaints of decreased vision when was wearing glasses in Iraq. He otherwise did well with hard contacts. He had a lazy eye as a child and wore a patch, but there was no family history of eye disease. The examiner determined that the keratoconus was a hereditary degeneration of the cornea, resulting in progressive stigmatism and thinning of the inferior cornea. It was described as mild at that point in time. In July 2006, Dr. H., who treated the Veteran for the past several years, stated: "it is more likely as not that there was a direct relationship between the current physical corneal curvature and the condition more than likely was aggravated when the patient served in the military." This was due to excessive eye rubbing and irritation from the dusty and dry environment of Iraq, where eye rubbing may be unavoidable. In February 2007, a VA eye note showed the clinician agreed with Dr. H. that the Veteran's condition was aggravated by his stint in the military, after reviewing VA records. In August 2007, Dr. H. stated he could not, with medical certainty, explain why the Veteran had keratoconus because the exact etiology was unknown. Keratoconus has familial and systemic condition associations as well as links to overexposure and sunlight, excessive eye rubbing, improper fitting of contacts and chronic eye irritant caused by prior injuries. It was possible that previous injuries could have led to his condition. In August 2007, the Veteran submitted an email from the National Eye Institute (NEI) that essentially echoed Dr. H. In November 2008, Dr. H. wrote another letter of explanation. He stated that on June 1997, the Veteran had spherical refraction with vision of 20/20. On December 1998, the Veteran had astigmatic refraction with a vision of 20/25. As a result, the keratoconus started after June 1997 and became evident by December 1998. It was at least as likely as not aggravated by exposure to windy, dusty area (as encountered during his time in Iraq in 2004). In November 2010, a VA examination report detailed the traumas of stick into the left eye in 1989 and a football into the right eye in 2004. The examiner stated that keratoconus was not caused by or related to active duty because it occurred as a result of abnormal large progression of astigmatism in eyeglass prescription or by corneal topography. The diagnosis was made in October 1998; records showed it did not occur prior to that. Active duty was in 2004. Keratoconus was most likely caused by an inherited corneal abnormality. As for whether it was aggravated in Iraq, the examiner stated that could not be resolved without resort to speculation. It would also be totally speculative to report a level of aggravation above and beyond the natural progression of the disease. In March 2012, Dr. H. explained that the exact etiology of keratoconus is unknown and cannot be explained. But it can be exacerbated by excessive eye rubbing, irritation, allergies and injuries. So it is possible it was aggravated in the military. In July 2012, a VA examination report shows the examiner stated that it was at least as likely as not that the keratoconus was incurred during active duty to include periods of ACDUTRA in May 1989 and June 1991. The examiner pointed out that the etiology of keratoconus is multifactorial. There was evidence of the Veteran rubbing his eyes while in service and this action was believed to be usually compulsive and prolonged with keratoconus. The examiner cited to a study and an article that supported her opinion. In August 2012, VA sent the file to a fee basis provided for an outside medical opinion and this examiner agreed with the July 2012 opinion. The examiner summarized the relevant information in the file and stated that keratoconus was at least as likely as not incurred in service. The Board finds that while some effort has been spent in this case to determine if the Veteran did suffer eye injuries while in service that may have been the start of the keratoconus or may have aggravated the keratoconus, the nature of this disability is such that it also could have been due to eye rubbing or other activities that occurred while he was on ACDUTRA. Relying on these more recent opinions and in consideration of all of the evidence in the file, the Board finds that it is at least as likely as not that keratoconus was incurred, not aggravated, in service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Turning to the initial increased rating aspect of the claim, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs). 38 C.F.R. § 4.27 (2012). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2012). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Board has considered whether the Veteran is entitled to additional staged ratings. Hart, 21 Vet. App. 505. No additional staged ratings are warranted by the evidence in the file. The Veteran filed his claim for service connection in April 2005. During the pendency of this appeal, the criteria for evaluating disabilities of the eye was revised and amended. See 73 Fed. Reg. 66544 (Nov. 10, 2008). The effective date of the revisions is December 10, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. Id. The post-2008 regulation does not apply to this claim. Under the pre-2008 Rating Schedule, 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. The schedule of ratings of diseases of the eye includes unhealed injury of the eye (DC 6009) and keratoconus (DC 6035). For DC 6009, a chronic injury 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. The minimum rating during active pathology is 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6009 (2008). Under DC 6035, keratoconus is to be evaluated on the impairment of corrected visual acuity using contact lenses. A note states that when contact lenses are medically required for keratoconus, either unilateral or bilateral, the minimum rating will be 30 percent. The Board finds that even though there is evidence of past eye trauma in this case, DC 6035 covering keratoconus is the appropriate code for the Veteran given his diagnosis and extensive follow up for this disability. The Board must evaluate disabilities under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). The Board has considered other DCs regarding the eye under 38 C.F.R. § 4.84a, however, the other diseases were not found. In a June 2005 VA examination report, the Veteran was found to have a scotoma which was congenital and not related to service. At the April 2009 VA examination, no scotoma was present in either eye. The Board finds that other DCs do not apply here. Evidence throughout the record shows the Veteran does have medically required contact lenses, so his rating is at least 30 percent under DC 6035. (See October 2000 and September 2004 service treatment records, as well as an April 2001 private eye doctor record.) Given the minimum rating for 30 percent for contact lenses, the Veteran's vision in one eye would have to be at least 20/100 or worse after correction for an increased rating to be applicable. See 38 C.F.R. § 4.84a, Impairment of Central Visual Acuity and Table V, Ratings for Central Visual Acuity Impairment, DC 6035. The Board finds the visual acuity of at least 20/100 or worse has not been shown at any point in the record. At the June 2005 VA examination, distant visual acuity was 20/20+ in the right eye and 20/25+ in the left. A July 2005 private record showed visual acuity of 20/30 in both eyes, under additional tests and ocular dominance the reading was 20/20 and 20/25. An August 2007 VA eye record showed visual acuity with correction was 20/20- and 20/30+2. A January 2008 periodic health assessment showed visual acuity was 20/20 bilaterally while in a February VA record visual acuity with contact lenses was 20/20 in the right eye and 20/30 in the left. In April 2009, the VA examination report stated that the Veteran had keratoconus and contact lenses were required (but also adequate correction was possible by other means). There was not more than four diopters of spherical correction between the eyes. Uncorrected distance vision for both eyes showed the Veteran could count fingers at seven feet. Other visual acuity results are below. Distance Near Corrected (Contacts) Corrected (Glasses) Uncorrected Corrected Right eye 20/25+ 20/30 20/200 20/20 Left eye 20/30+ 20/40-2 20/200 20/25 The rest of the eye examination was largely unremarkable. The Veteran was working as a construction project manager/supervisor. He stated he lost less than one week of time due to headache from eye strain. These symptoms caused mild effects on usual daily activities like exercise, sports, recreation, traveling. They had a moderate impact on driving and a severe impact on using the computer. The examiner noted decreased visual acuity was the primary symptom. Other records documenting visual acuity in 2009 showed similar results (see June, August and December 2009 VA and service treatment records). The November 2010 VA examination also documented acuity and symptoms. General eye symptoms included burning, stinging, glare, impaired night vision, halos, and floaters. There was no diplopia, funduscopic examination was normal and visual acuity was not worse than 5/200. Keratoconus did result in severe irregular astigmatism that basically needed contact lenses. Acuity results are below. Distance Near Uncorrected Corrected Uncorrected Corrected Right eye 20/400 20/20 20/40 20/20 Left eye 20/400 20/25 20/40 20/20 Slit lamp findings were abnormal in both eyes; there was decreased tear film. Visual fields were full. The Veteran was still working full time as a project manager, full time. He lost about one week in the last year due to eye appointments and eye pain/headaches. The examiner stated vision difficulty resulted in a severe occupational impact; he also had trouble driving. He was ultimately assigned different duties. Finally, the Veteran received another VA examination in July 2012. He put in his rigid contacts early in the morning and his eyes began to ache mid-day. He removed them at the end of the work day, but his vision got blurry around bedtime. He had to switch from being a job site construction project manager to completing duties in the office. Visual acuity was as follows (with glasses): Distance Near Uncorrected Corrected Uncorrected Corrected Right eye 5/200 20/40 or better 20/200 20/40 or better Left eye 5/200 20/40 or better 20/200 20/40 or better With rigid gas permeables his visual acuity was 20/20-2 in the right eye and 20/25+2 in the left eye. The rest of the examination was relatively normal; the positive cone of the cornea with no apical scarring was noted as well as keratoconus. The decrease in visual acuity was due to the keratoconus. The Board finds the Veteran is competent to report his eye-related symptoms such as aches and blurriness. See Washington, 19 Vet. App. at 368-69. Moreover, such reports have been credible throughout this case. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate). Given the above findings, the Board finds that a 30 percent evaluation best represents the Veteran's disability picture in this case. As explained, visual acuity results do not rise to the level of an increased rating under 38 C.F.R. § 4.81a (2008). Other eye disabilities are not shown. An initial evaluation of 30 percent for service-connected keratoconus is awarded. For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. The Board has considered step one under Thun, 22 Vet App 111, and finds the schedular rating to be fully adequate in this case. The Veteran described infrequent headaches, some pain and blurriness. The schedular rating takes such symptoms into account by quantifying it into visual acuity readings. The Board finds the pertinent rating criteria, as detailed previously, accurately describes the severity and symptoms of the keratoconus. The evidence does not present an exceptional disability picture. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record. In this case, the Veteran has reported current full-time employment (see, for example, July 2012 VA examination report). The Board finds entitlement to a TDIU has not been raised by the record. The benefit-of-the-doubt rule does apply in determining that no offset is required under 38 C.F.R. § 3.322 and 4.22, and the Board finds that a 30 percent evaluation is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER An evaluation of 30 percent, without offset, for the bilateral keratoconus is allowed. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs