Citation Nr: 1313845 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 05-41 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for bilateral conjunctivitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). In September 2010, the Veteran testified before the undersigned during a videoconference hearing. This issue was last previously remanded, along with the issue of service connection for loss of vision in the right eye, in a May 2011 Board remand. As the issue of service connection for right eye blindness was granted in an August 2012 RO decision, the sole remaining issue in appellant status is as noted above. FINDINGS OF FACT The Veteran's bilateral conjunctivitis results in minimal symptomatology, and does not cause any loss of visual acuity. CONCLUSION OF LAW The criteria for an increased evaluation, for bilateral conjunctivitis, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.79, 4.84a, Diagnostic Codes 6018, 6061-79 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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 the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. Numerous VCAA letters, including one dated in September 2006, as well as two prior remands, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced representative and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided VA examinations multiple times during the course of this appeal, in January 2009, and May 2011. These examination reports along with the remainder of the evidence of record contain sufficient findings to rate the Veteran's service-connected conjunctivitis under the appropriate rating criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). 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). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). However, in ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran is currently in receipt of a 10 percent evaluation for conjunctivitis under Diagnostic Code 6018. See 38 C.F.R. § 4.20 (2012). During the pendency of the Veteran's claim and appeal, the rating criteria for evaluating eye disabilities were revised, effective December 10, 2008. See 73 Fed. Reg. 66,543 (Nov. 10, 2008); (codified at 38 C.F.R. § 4.79 , Diagnostic Codes 6000 to 6037 (2012)). However, that amendment only applies to claims received on or after December 10, 2008. In this case, the Veteran's claim for an increased evaluation has been pending since prior to that date. Therefore, the Board will only consider the Veteran's service-connected eye disability under the rating criteria in effect prior to December 2008. As in effect prior to December 10, 2008, Diagnostic Code 6018 provides a 10 percent disability rating if there is active conjunctivitis, with objective symptoms. If the conjunctivitis is healed, the disability is rated on residuals. If there are no residual symptoms of conjunctivitis, a zero percent (noncompensable) rating is assigned. The diagnostic code does not provide for a rating in excess of 10 percent. 38 U.S.C.A. § 4.84, Diagnostic Code 6018(2008). The Board notes that the December 2008 amendment to the rating schedule, although not directly applicable here, is nevertheless instructive with respect to identifying the potential residuals of conjunctivitis. Under the amended regulations, Diagnostic Code 6018 clarifies that inactive conjunctivitis should be rated on the residuals, such as visual impairment and disfigurement (referencing Diagnostic Code 7800). See 38 C.F.R. § 4.79, Diagnostic Code 6018 (2012). 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 on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061-79 (2012). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. § 4.75. The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a. 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 20/50 and vision in the other eye is correctable to 20/50 or 20/40; (2) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (3) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079 (2008). A 20 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/50; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6061-79 (2012). Additionally, visual impairment may be rated based on impairment of visual fields (Diagnostic Codes 6080-81) or impairment of eye muscle function (Diagnostic Codes 6090-92). The Board points out that the Veteran is currently in receipt of the highest available schedular evaluation under Diagnostic Code 6018. As to a higher rating regarding visual acuity; the Board points out that the Veteran was granted service connection for a blind right eye, and special monthly compensation for loss of use of the right eye, by an August 2012 rating decision. Thus he is receiving nearly the highest evaluation possible for loss of visual acuity in the right eye, having only light perception. This evaluation is due to blunt trauma, not conjunctivitis. Taking into account all relevant evidence, the Board finds that the preponderance of the evidence of record is against a grant of increased rating for the Veteran's service connected conjunctivitis. In this regard, the Board notes that there is simply no evidence of record that the Veteran's visual acuity has been affected in any way by his diagnosis of conjunctivitis. A January 2007 report of VA fee basis examination indicated that the Veteran reported problems with inflammation and itching in both eyes. Examination showed some conjunctival injection in both eyes. The Veteran was diagnosed with conjunctivitis as well as some loss of visual acuity in the right eye, however, the examiner did not relate this loss of visual acuity to his conjunctivitis. A May 2009 report of VA examination noted a history of conjunctivitis, but found no evidence of conjunctivitis on examination, and further clarified that the prior history of conjunctivitis did not in any way cause a loss of visual acuity. During the Veteran's most recent VA examination in May 2011, a diagnosis of conjunctivitis was noted, however, there were no specific findings related to that diagnosis in the claims file. Nevertheless, the examiner specifically noted that the blindness in the Veteran's right eye was not due to conjunctivitis, as he stated that conjunctivitis does not cause vision loss. Thus, while the Veteran carries at least a historical diagnosis of conjunctivitis, the examination evidence of record has found either none, or minimal residuals related to that diagnosis, and none of the medical evidence of record has linked any loss of visual acuity to service. With minimal evidence of disability related to conjunctivitis, with the Veteran currently in receipt of the maximum schedular evaluation for this disability, and with no evidence of record showing any loss of visual acuity due to conjunctivitis, the Board finds that the preponderance of the evidence of record is against a grant of increased rating for bilateral conjunctivitis. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for an increased ratings for the Veteran's bilateral conjunctivitis must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert. Extraschedular Consideration For this claim currently on appeal, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected bilateral conjunctivitis is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which has been shown to be minimal. There is no evidence in the medical records of an exceptional or unusual clinical picture, and this disability has not caused the Veteran to miss work frequently, nor has it required frequent hospitalizations. The Board, therefore, has determined that referral of this claim for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Rice Consideration In denying the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Board has reviewed the evidence of record and concludes that a claim for TDIU has not been raised. The most recent VA examination of the Veteran specifically noted that this conjunctivitis is a minimal disability. The Veteran has service connected blindness in one eye, which no doubt does impact his employability, but there is no evidence of record showing that his minimal conjunctivitis symptomatology has impacted his employability. In light of the foregoing, the Board concludes that the issue of entitlement to TDIU has not been raised in this case. The Board also points out that any such claim, even if it were found to exist, would be rendered moot by the fact that the Veteran has been in receipt of schedular benefits at the 100 percent level since March 1991, before this appeal was initiated. ORDER Entitlement to an increased evaluation in excess of 10 percent for bilateral conjunctivitis is denied. ____________________________________________ N. Rippel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs