Citation Nr: 1312865 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 06-36 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased disability evaluation, to include on an extraschedular basis, for post-operative status, irridectomy, left eye, for removal of metallic foreign body with early changes consistent with traumatic cataract (left eye disability), rated 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to July 1972 and from September 1990 to May 1991, to include service in Operation Desert Storm. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a January 2007 statement, the Veteran withdrew his request for a Board hearing. See 38 C.F.R. §§ 20.703, 20.704 (2012). In an August 2008 decision, the Board denied the claim. The Veteran appealed this determination to the Court of Appeals for Veterans Claims (Court). In a March 2009 Order, the Court granted the Secretary's Unilateral Motion for Remand, vacated the Board's decision, and returned the decision to the Board. On remand, the Board was directed to consider and apply 38 C.F.R. § 3.321 as provided in Thun v. Peake, 22 Vet. App. 111 (2008). In September 2009, in February 2011, November 2011, and December 2012, the Board remanded this matter for additional development. FINDINGS OF FACT 1. The most competent and credible evidence of record shows that, at its worst, the Veteran's best corrected vision at distance in the non service connected right eye and service connected left eye is 20/40 or better at all times during the pendency of the appeal. 2. The most competent and credible evidence of record shows that the Veteran does not have keratoconus, aphakia, or blindness in either eye or there exists a difference of more than 4 diopters of spherical correction between the two eyes at any time during the pendency of the appeal. 3. The most competent and credible evidence of record shows that the Veteran's service connected left eye disability is not manifested by exceptional or unusual disability picture, such that an extra-scheduler evaluation in excess of 10 percent is warranted for this disability, at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria are not met for a rating in excess of 10 percent for the left eye disability, including on an extraschedular basis, at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.75, 4.78, 4.79, 4.80, 4.84a, Diagnostic Codes 6027, 6066, 6079 (2008); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 3.350, 3.383, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. Next, the Board finds that letters dated in March 2006 and May 2006, prior to the June 2006 rating decision, along with subsequent letters dated in October 2009, November 2009, April 2010, March 2011, November 2011, December 2012, and January 2013 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. If the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the June 2006 rating decision, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the February 2013 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, the Board finds that even if these letters failed to provide the Veteran with adequate 38 U.S.C.A. § 5103(a) notice, that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remands. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA obtained and associated with the claims file all identified and available in-service and post-service medical records including his post-service records from the Greenwood Eye Clinic, Eye Associates of Carolina, Carolina Surgical Specialists, Dr. Peter Smith, and the Greenville, Spartenburg, Dorn, and Columbus VA Medical Centers in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In this regard, while the Veteran provided VA with an authorization to obtain his treatment records from a Michael O. Tanbonliong, these treatment records are not found in the claims file. The record reflects that in March 2006 the RO notified the Veteran that its request for these records was returned as undeliverable because the address the claimant had provided was incorrect and asked him to provide VA with a correct address. No new address was thereafter provided by the Veteran. Thus, the Board finds that a remand to request these records is not required. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that while the VA does have a duty to assist the veteran in the development of a claim, that duty is not limitless.) Similarly, the Board's February 2011, November 2011, and December 2012 remands asked the Veteran to provide VA with authorizations to obtain any outstanding private treatment records, employment records, and/or "(I) lay statements from individuals that have first-hand knowledge, and/or who were contemporaneously informed his left eye symptomatology; (II) evidence of lost or diminished employment opportunities caused by his left eye disability; (III) evidence of reduced wages and/or hours; and any other evidence regarding the impact his left eye disability has on his employment; and (IV) evidence of hospitalization to treat his left eye disability . . ." Post-remand letters dated in March 2011, November 2011, December 2012, and January 2013 also specifically asked him for these records. Despite VA's extensive efforts to obtained these records and information, however, the Veteran neither provided VA with authorizations to obtain any of his other private treatment records or work records nor did he provide any of the requested lay statements in support of his claim. As such, the Board finds that a remand to request these records is not required. Id. The record also shows that the Veteran was afforded VA examinations in March 2006, March 2011, December 2011 (an addendum), and February 2013 as well as an opinion from the Director, Compensation and Pension dated in January 2010. Moreover, the Board finds the examinations, along with the addendum, are adequate to adjudicate the claim and substantially comply with the Court's and Board's remand instructions because the examiners took a medical history of the claimant that conforms with the evidence found in the record and/or a detailed medical history from the clamant and conducted in-depth examinations of the claimant that included all needed eye testing and thereafter provided medical opinions as to the severity of the disability and rationales for the opinions that allows the Board to rate it under all applicable rating criteria. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim and what the evidence in the claims folders shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran asserts that his left eye disability meets the criteria for a compensable scheduler rating or a higher non-schedular rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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 evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The June 2006 rating decision confirmed and continued a non compensable rating for the Veteran's left eye disorder under 38 C.F.R. § 4.84a, Diagnostic Code 6027-6079. Thereafter, while the March 2010 rating decision confirmed and continued a non compensable scheduler rating for the Veteran's left eye disorder, it nonetheless granted it a 10 percent extra-schedular rating under 38 C.F.R. § 4.84a, Diagnostic Code 6027-6066 effective from the date of claim. a. A Higher Scheduler Rating Initially, the Board notes that VA's schedule for rating eye disabilities were revised effective December 10, 2008, but that these amended criteria govern cases only when the claim is filed on or after that date unless the Veteran asks that his claim be adjudicated under the new criteria. See 73 Fed. Reg. 66,543 (November 10, 2008). The record does not show that the Veteran has ever requested that his claim be adjudicated under the new rating criteria. Therefore, the Board finds that it must rate his service connected left eye disability under the old rating criteria. Next, the Board notes that old 38 C.F.R. § 4.84a, Diagnostic Code 6027 (2008) provided that traumatic cataracts are rated based on impairment of vision if preoperative and rated based on impairment of vision and aphakia if postoperative. In this regard, the record shows that the Veteran's service-connected left eye has undergone operative procedures. Therefore, the Board's will look to see if a compensable schedular rating is warranted based on either aphakia or impairment of vision. As to aphakia, old 38 C.F.R. § 4.84a, Diagnostic Code 6029 (2008) provided a 30 percent rating for unilateral or bilateral aphakia. However, the Board notes that the record is negative for any evidence aphakia. See, for example, VA examinations dated in March 2006, March 2011, December 2011 (an addendum), and February 2013 as well as an opinion from the Director, Compensation and Pension dated in January 2010; VA optometry treatment records dated in April 2009, October 2009, December 2010, December 2011, and November 2012; Greenwood Eye Clinic records dated March 2009 to September 2009; and Eye Associates of Carolina records dated in January 2007. In the absence of objective evidence of aphakia, the Board finds that a compensable schedular rating is not warranted for the Veteran's left eye disability under Diagnostic Code 6029 for aphakia at any time during the pendency of the appeal. 38 C.F.R. § 4.84a (2008); Hart. As to a compensable schedular rating for the Veteran's left eye disability based on impairment of vision, under the old rating criteria the severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting 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. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). In this respect, a 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/40 and vision in the other eye is correctable to 20/50; (2) when vision in one eye is correctable to 20/50 and vision in the other eye is correctable to 20/50; (3)when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079 (2008). Under the old rating criteria, when service connection is in effect for only one eye, the nonservice-connected eye is considered to have vision of 20/40 or better. Only when a veteran has blindness in one eye which is service-connected and blindness in the nonservice-connected eye will the eye be evaluated as if both disabilities were service connected. 38 U.S.C.A. § 1160; 38 C.F.R. § 3.383. Absent total blindness, visual acuity in the nonservice-connected eye is considered to be normal (20/40 or better) irrespective of any vision disability in that eye. Id; Villano v. Brown, 10 Vet. App. 248, 250 (1997). Lastly, under the old rating criteria when rating impairment of visual acuity and visual impairment when only one eye is service connected, the combined ratings for disabilities of the one service connected eye cannot exceed the amount for total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. 38 C.F.R. § 4.80 (2008). With the above criteria in mind, the Board notes that the record is negative for any evidence of blindness in either eye. See, for example, VA examinations dated in March 2006, March 2011, December 2011 (an addendum), and February 2013 as well as an opinion from the Director, Compensation and Pension dated in January 2010; VA optometry treatment records dated in April 2009, October 2009, December 2010, December 2011, and November 2012; Greenwood Eye Clinic record dated March 2009 to September 2009; and Eye Associates of Carolina record dated in January 2007. Absent total blindness, the Board finds that the visual acuity in the nonservice-connected right will eye will be considered to be normal (20/40 or better) irrespective of any vision disability in that eye. 38 C.F.R. § 3.383; Villano. As to measuring the Veteran's visual acuity, under the old rating criteria when rating impairment of visual acuity the best distant vision obtainable after best correction by glasses will be the basis of rating. 38 C.F.R. § 4.75 (2008). However, the old rating criteria has an exception in cases of keratoconus in which contact lenses are medically required and when there exists a difference of more than 4 diopters of spherical correction between the two eyes. 38 C.F.R. § 4.75 (2008). In those circumstances, the best possible visual acuity of the poorer eye without glasses, or with a lens of not more than 4 diopters difference from that used with the better eye, will be taken as the visual acuity of the poorer eye. Id. Here, however, there is no evidence indicating that the Veteran has been diagnosed with keratoconus at any time during the pendency of the appeal. See, for example, VA examinations dated in March 2006, April 2011, December 2011 (an addendum), and February 2013 as well as an opinion from the Director, Compensation and Pension dated in January 2010; VA optometry treatment records dated in April 2009, October 2009, December 2010, December 2011, and November 2012; Greenwood Eye Clinic dated March 2009 to September 2009; and Eye Associates of Carolina dated in January 2007. As to there being a difference of more than four diopters of spherical correction between the service-connected left eye and non service connected right eye, the record does not document such a difference. Id. In fact, the February 2013 VA examiner specifically opined that there was not more than three diopters between the eyes. This medical opinion is not contradicted by any other medical evidence of record. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that best distant vision obtainable after best correction by glasses will be the basis of the Veteran's visual acuity in his service connected left eye at all times during the pendency of the appeal. 38 C.F.R. § 4.75 (2008); Hart. Moreover, as noted above, the visual acuity in the nonservice-connected right will eye will be considered to be normal (20/40 or better) irrespective of any vision disability in that eye. 38 C.F.R. § 3.383; Villano. As to whether the Veteran meets the criteria for a compensable schedular rating due to loss of central visual acuity, the Board notes that his corrected visual acuity at distance were as follows: 20/20 in the non service connected right eye and 20/25 in his service connected left eye at his March 2006 VA examination and 20/40 or better in the non service connected right eye and 20/40 or better in his service connected left eye at his February 2013 VA examination. While treatment records document the Veteran's complaints and treatment for left eye problems, nothing in these records show the severity of the claimant's adverse symptomatology worse than what was reported at the above examinations. See Colvin; see also VA optometry treatment records dated in April 2009, October 2009, December 2010, December 2011, and November 2012 (they were uniform in reporting his best corrected vision as 20/20 or better in the right eye and 20/30 in the left eye); Greenwood Eye Clinic records dated March 2009 to September 2009 (they reporting his best corrected vision as 20/20 in the right eye and 20/25 in left eye but they did not say if this was the Veteran's best corrected vision at distance); and Eye Associates of Carolina records dated in January 2007 (they only reported that his uncorrected vision was 20/25 in the right eye and 20/40 in the left eye). As to a compensable schedular rating due to loss of visual acuity, the Veteran's visual acuity is 20/40 or better at distant in the service-connected left eye and as a matter of law 20/40 or better at distant in the nonservice-connected right eye with the application of Villano, supra. Therefore, because vision in one eye is not correctable to 20/50 when vision in the other eye is correctable to 20/50, because vision in one eye is not correctable to 20/50 when vision in the other eye is correctable to 20/50, and because vision in one eye is not correctable to 20/70 when vision in the other eye is correctable to 20/40, the preponderance of the evidence is against entitlement to a compensable schedular rating. See 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079 (2008). This is true at all times during the pendency of the appeal and therefore the Board need not consider staged ratings. See Hart. b. A Higher Extra-Scheduler Rating Pertinent regulation provides that, in exceptional cases, where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director for Compensation and Pension Service for consideration of an "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218 (1995). (Emphasis Added). The Board remanded the issue of whether the Veteran was entitled to a compensable rating for his left eye disability on an extra-schedular basis in September 2009 pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The remand along with three subsequent Board remands provided the Veteran an opportunity to present evidence is support of his claim that his left eye disability caused marked impairment in employment or frequent periods of hospitalization. In January 2010, the Director, Compensation and Pension Service, determined that his competent and credible complaints regarding his left eye disability causing light sensitivity, pain, tearing, unsightliness, and the chronic need to wear sunglasses along with his claims regarding the above interfering with his job as a commercial driver (he drives a wrecker) when taken along with the diagnosis of mydriasis by the July 2006 VA examiner entitled the claimant to a 10 percent extra-schedular rating. In this regard, while medical records show the Veteran's continued complaints and treatment for left eye problems, he does not claim and the record does not show that it has caused any hospitalizations. Moreover, while the Veteran reported that his left eye disability caused him problems at work as a wrecker, the record does not contain any objective evidence that it has ever caused him to lose any time from work. In fact, by he acknowledges that he works full-time. Further, the March 2011 VA examiner opined in his examination report as well as in the December 2011 addendum that the Veteran's left eye disability did not interfere with his employment. A similar opinion was provided by the February 2013 VA examiner. These opinions are not contradicted by any other medical opinion of record. In remanding this case, the Board asked the Veteran to provide VA with "(I) lay statements from individuals that have first-hand knowledge and/or who were contemporaneously informed his left eye symptoms; (II) evidence of lost or diminished employment opportunities caused by his left eye disability; (III) evidence of reduced wages and/or hours; and any other evidence regarding the impact his left eye disability has on his employment; and (IV) evidence of hospitalization to treat his left eye disability . . ." However, no such records were ever provided by the claimant. Thus, the Board finds that it has no other evidence upon which to grant the Veteran's claim for a higher extra-scheduler rating. Initially, the Board notes that the assignment of a compensable evaluation by Director, Compensation and Pension Service, is already recognition that the Veteran's industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Moreover, the Board finds that the existing evidence found in the claims file does not show such an exceptional disability picture such that the 10 percent extra-schedular evaluation already assigned the Veteran for his service-connected left eye disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's condition with the evidence found in the claims file shows that the 10 percent extra-schedular rating already assigned by the Director, Compensation and Pension, for the appellant' complaints of light sensitivity, pain, tearing, unsightliness, and the chronic need to wear sunglasses reasonably describes his disability level and symptomatology. Stated another way, the Board finds that nothing in the existing record shows that the Veteran's left eye disability causes marked interference with employment or frequent periods of hospitalization beyond that which is already contemplated by the 10 percent extra-schedular rating already assigned him under 38 C.F.R. § 3.321(b)(1). See Shipwash, supra. (Emphasis Added). Accordingly, the Board finds that the claim for an extra-schedular rating in excess of 10 percent for the Veteran's left eye disability must be denied. 38 C.F.R. 3.321. This is true at all times during the pendency of the appeal. See Hart, supra. Conclusion As to the various lay statements found in the record, while the Veteran is considered competent and credible to report on what he can see and feel, the Board finds more competent the opinions provided by the medical experts at the VA examinations as to the severity of his service-connected left eye disability than his lay claims. See Davidson. In adjudicating the current appeal for an increased rating, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims she is unable to work due to a service-connected disability). However, the Board finds that the holding in Rice is not applicable to the current appeal because the Veteran has never claimed that the above left eye disability, acting alone, prevents him from obtaining and/or maintaining employment. As such, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU. ORDER The claims for a compensable scheduler rating and for an extra-scheduler rating in excess of 10 percent for a left eye disability are denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs