Citation Nr: 1318759	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  10-36 151A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for cataracts.  

2.  Entitlement to an initial compensable rating for right eye photophobia. 

3.  Entitlement to an initial compensable rating for external angle right eye scar and right eyebrow scar.



REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from August 1974 to August 1977. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2010 and August 2010 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina.  

The Veteran testified before the undersigned during a videoconference hearing in November 2012.  A transcript of the hearing has been associated with the claims file.  

At the Board hearing, the Veteran submitted additional evidence pertinent to his appeal.  Because he waived initial RO jurisdiction of this evidence, the Board has accepted it for inclusion into the record on appeal.  See 38 C.F.R. §§ 20.800; 20.1304(c).

In a September 2010 statement, the Veteran wrote that he has "post traumatic stress" as a result of his service-connected eye disability.  Likewise, at the November 2012 Board hearing, he further described psychological effects of this disability.  These statements establish an informal claim of service connection for a psychiatric disorder secondary to his right eye photophobia and external angle right eye scar and right eyebrow scar.  Because this claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

The issue of entitlement to service connection for cataracts is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's right eye photophobia is manifested by a disability picture involving visual acuity with best correction of 20/40 +2 right eye without incapacitating episodes.  

2.  The Veteran's external angle right eye scar and right eyebrow scar is manifested by a disability picture involving two characteristics of disfigurement.   


CONCLUSIONS OF LAW

1.  The criteria for the assignment of an initial compensable disability rating for right eye photophobia are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45,  4.75-4.79, including Diagnostic Code 6066 (2012).

2.  The criteria for the assignment of an initial 30 percent disability rating, but no higher, for external angle right eye scar and right eyebrow scar are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.118, including Diagnostic Code 7800 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Before addressing the merits of the appeal, the Board must first be satisfied that there is a complete record upon which to base a decision and that all duties to notify and assist have been met.  See 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. §§ 3.102, 19.7(a).  

As set forth in 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 on how a disability rating and an effective date will be assigned if service connection is awarded.  Id. at 486.  

Here, the appeal arises from the Veteran's disagreement with the initial evaluation assigned following the grant of service connection for both disabilities on appeal.  He was sent a letter in October 2009 that provided information as to what evidence was required to substantiate the service connection claim; of the division of responsibilities between VA and a claimant in developing an appeal; and information on how a disability rating and an effective date will be assigned if service connection is awarded.  Because service connection was subsequently granted, each claim is substantiated and no additional notice is required as to the downstream issue involving entitlement to a higher initial evaluation.  Any defect in the notice is deemed not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA regarding these claims.

Next, as indicated, VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting in the procurement of service treatment records, all relevant pre-and post-service treatment records, and by providing an examination, when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  "Relevant records" in the context of VA's duty to assist "are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the [] claim."  Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (quoting Black's Law Dictionary 1316 (8th ed. 2004), "defining 'relevant' as '[l]ogically connected and tending to prove or disprove a matter in issue; having appreciable probative value-that is, rationally tending to persuade people of the probability or possibility of some alleged fact.'").  Not all of a claimant's medical records will be relevant to a VA disability claim.  Id.  

The Board finds that all necessary development has been accomplished in this case, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In particular, the claims file contains the Veteran's service treatment records, as well as all available post-service reports of VA and private treatment and examination relevant to this appeal.  In this regard, the Board acknowledges that the Veteran signed a release of information authorization (ROI) in October 2009 and June 2010 for private treatment records.  However, he concurrently submitted the pertinent records from the private facilities with the October 2009 ROI.

These two ROIs identify earlier records, but the dates of those earlier treatment records precede the instant period of appellate review by many years.  Although such records may inform the instant determination, the Board nonetheless finds that remand to attempt to obtain the earlier records is not necessary.  There are two considerations informing this finding.  First, the Veteran himself obtained later records for these private facilities, but not the earlier records.  He did not explain why, but two reasonable inferences to be drawn are that either the earlier records could not be obtained or that they bear little favorable relevance to this appeal.  Second, the evidence presently of record extensively documents the history of his service-connected impairments.  Accordingly, remanding this case for further private evidentiary development would be an essentially redundant exercise, which would result only in additional delay with no benefit to the Veteran and would amount to simply "an idle and useless formality."  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

In addition to the documentary evidence, the Veteran's testimonial statements are of record, including testimony provided at a hearing before the undersigned.  At this hearing, the undersigned explained the issues on appeal.  See Hearing Transcript page 8.  Although the undersigned did not expressly suggest the submission of favorable evidence, the Veteran himself submitted additional evidence at the Board hearing.  Moreover, the evidence of record, which is discussed in greater detail herein below, including the Veteran's own hearing testimony, fully demonstrates the severity of his impairments.  In fact, there is no material disagreement as to the severity of his symptoms that the Board is not accepting as true.  Therefore, to the extent the undersigned did not expressly satisfy all hearing officer duties, as directed by 38 C.F.R. § 3.103(c), the Board nonetheless finds that the Veteran is not prejudiced by proceeding based on the current evidentiary record.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010); see also Procopio v. Shinseki, 26 Vet. App. 76, 80 (2012).

Another important consideration is that the Veteran was afforded VA examinations in February 2010 and July 2010, respectively, to evaluate the severity of his service-connected disabilities.  The Board finds that the VA examinations are adequate to decide the case because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they describe the disability picture of each service-connected disability in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  

Furthermore, the Veteran has not asserted, and the evidence does not indicate, that his symptoms have materially increased in severity since those evaluations.  See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  To the contrary, a September 2012 private (non-VA) examination shows that the Veteran's disability picture is unchanged as to his visual impairment.  

The Board accordingly finds no reason to remand for further examination.    

  II.  Analysis

The Veteran contends that compensable ratings are warranted for his service-connected (1) right eye photophobia, and (2) external angle right eye scar and right eyebrow scar.

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities.  38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2012).  The disability ratings are based primarily upon the average impairment in earning capacity resulting from a service-connected disability, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15 (2012).  Where there is a question as to which of two disability ratings shall be applied, the higher disability rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.  

All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).  However, "disability ratings are assigned based on a 'condition,' rather than on any symptoms of a particular condition."  Cullen v. Shinseki, 24 Vet. App. 74, 80-81, 84 (2010).  Thus, separate disability ratings under the same diagnostic code are not assignable "for different symptoms of an underlying spinal condition, such as pain, ankylosis, or muscle spasms."  Id.  In other words, "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise."  Id.  However, separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions.  Id.  
 
After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant.  38 C.F.R. § 4.3 (2012).  

Where entitlement to compensation already has been established and 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).  In Fenderson v. West, 12 Vet App 119, 125-26 (1999), however, the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a veteran's disagreement with the initial rating assigned at the time a disability is service-connected.  Accordingly, where the question for consideration is the propriety of the initial rating assigned, disability rating of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.  See id. at 126-27.  Moreover, in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15.  

In making all determinations, the Board must also fully consider the lay assertions of record.  When deciding claims for higher ratings, the Board must particularly consider the credibility of a claimant's statements regarding symptoms of a "personal affliction."  See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (the Board did not discuss the credibility of a veteran's statements reporting constipation).  

Moreover, if credible, 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).  Thus, a layperson is competent to report on his symptomatology.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).   

Also, pertinent to evaluating all service-connected eye disabilities, an evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye.  The evaluation for visual impairment of one eye is to be combined with evaluations for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under diagnostic code 7800).  38 C.F.R. § 4.75(d) (2012).  

Subject to the provisions of 38 CFR 3.383(a), if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment.  38 C.F.R. § 4.75(c).  According to 38 CFR 3.383(a), compensation is payable for the combinations of service-connected and non-service-connected disabilities as if both disabilities were service-connected, provided the non-service-connected disability is not the result of the veteran's own willful misconduct.  Pertinent here, this includes impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of non-service-connected disability and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less.  38 C.F.R. § 3.383(a) (2012).  

Also pertinent when evaluating all service-connected eye disabilities, an examination must be conducted by a licensed optometrist or by a licensed ophthalmologist.  The examiner must identify the disease, injury, or other pathologic process responsible for any visual impairment found.  Examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function.  Unless medically contraindicated, the fundus must be examined with the claimant's pupils dilated.  38 C.F.R. § 4.75(b).  

(The remaining provision of 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.77, and 4.78, set forth further considerations for rating eye disabilities not directly implicated in this case.)   

Finally, it is important to note generally that the joining of schedular criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met.  Tatum, 23 Vet. App. at 156.  

Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15.  
To afford justice in exceptional situations, however, an extraschedular rating may also be assignable.  38 C.F.R. § 3.321(b).  The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  This determination follows a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule.  Therefore, the assigned schedular evaluation is adequate and no referral is required.  Id.  If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-16.

The first two steps should be undertaken by comparing the disability picture of each service-connected disability with the criteria in the rating schedule for that disability.  The Board should compare the service-connected disability picture with the criteria in the rating schedule for that disability.  Johnson v. Shinseki, --- Vet. App. ----, 2013 WL 1224810, Vet. App., March 27, 2013 (NO. 10-1785).  Extraschedular consideration is undertaken on the basis of each individual service-connected disability.  Based on this disability-by-disability approach, the Board is not required to consider whether a veteran is entitled to referral for extraschedular consideration of his service-connected disabilities on a collective basis.  Id.  

If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. 111.



A.  Right Eye Photophobia

The Veteran's service-connected right eye photophobia is presently assigned a noncompensable rating under Diagnostic Code (DC) 6099-6000.  

The designation 6099-6000 reflects that photophobia is an unlisted condition in the schedule of ratings.  In such situations, when an unlisted condition is encountered, a disability must be rated by analogy 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.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.  

Accordingly, when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions.  For the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.  With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.  (For instance, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded "5002-5240.")  In this way, the exact source of each rating can be easily identified.  (In the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature.)  Residuals of diseases or therapeutic procedures will not be cited without reference to the basic disease.  38 C.F.R. § 4.27.

Here, a February 2010 VA examination (discussed in greater detail herein below) shows that the Veteran's photophobia is a result of a history of traumatic iritis.  Accordingly, the presently assigned diagnostic code, DC 6099-6000, which establishes the diagnostic criteria for choroidopathy, including uveitis, iritis, cyclitis, and choroiditis, is the most analogous diagnostic code assignable.  

In this regard, the Board observes initially that DC 6000 requires that the disability be evaluated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation.  38 C.F.R. § 4.79 (2012).  

With regard to incapacitating episodes, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.  A 20 percent rating is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months.  A 40 percent rating is assigned for  incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months.  The maximum schedular rating assignable for incapacitating episodes, 60 percent, is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.79, General Rating Formula For Diagnostic Codes 6000 Through 6009.  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.  Id.  

The diagnostic codes for evaluating impairment of central visual acuity are DCs 6061 to 6066.  38 C.F.R. § 4.79 (2012).  Most pertinent here, under DC 6066, where vision in one eye is 20/200 (6/60), a 20 percent rating is assigned where vision in the other eye is 20/40 (6/12); a 30 percent rating is assigned where visions in the other eye is 20/50 (6/15); a 40 percent rating is assigned where visions in the other eye is 20/70 (6/21); a 60 percent rating is assigned where visions in the other eye is 20/100 (6/30); a maximum 70 percent rating is assigned where visions in the other eye is 20/200 (6/60).  This same diagnostic code directs that a noncompensable (zero percent) rating is assigned where vision in one eye is 20/40 (6/12) and vision in the other eye is 20/40 (6/12).  38 C.F.R. § 4.79.

With regard to evaluating visual impairment, examination of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen's test type or its equivalent.  38 C.F.R. § 4.76(a) (2012).  

Central visual acuity is to be evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present.  38 C.F.R. § 4.76(b)(1) (2012).  However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity.  Id. 

The Board takes judicial notice that a "diopter" is the unit of refracting power of lenses, denoting the reciprocal of the focal length expressed in meters.  Stedman's Medical Dictionary, 27th Edition; see also Eye Health Center, WebMD, How to Read Your Eyeglass Prescription, http://www.webmd.com/eye-health/how-read-eye-glass-prescription (last visited May 26, 2013) (explaining that "A plus sign in front of the number [on your eyeglass prescription] means you are farsighted and a minus sign means you are nearsighted.  These numbers represent diopters, the unit used to measure the correction, or focusing power, of the lens your eye requires. . .)  For example, if your prescription says -1.00, you have one diopter of nearsightedness.  See Smith v. Derwinski, 1 Vet. App. 235, 238 (1991); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (judicial may be taken of facts of universal notoriety that are not subject to reasonable dispute.).  

Furthermore, in any case where the examiner reports that there is a difference equal to two or more scheduled steps between near and distance corrected vision, with the near vision being worse, the examination report must include at least two recordings of near and distance corrected vision and an explanation of the reason for the difference.  In these cases, evaluate based on corrected distance vision adjusted to one step poorer than measured.  38 C.F.R. § 4.76(b)(3).  

To evaluate the impairment of visual acuity where a claimant has a reported visual acuity that is between two sequentially listed visual acuities, use the visual acuity which permits the higher evaluation.  38 C.F.R. § 4.76(b)(4).  

The Board finally observes that these diagnostic criteria have not changed during the pendency of this appeal.  

In the present case, the Board finds after a careful review of the pertinent evidence of record that a higher initial rating is not warranted for the Veteran's right eye photophobia.  

To the contrary, the Veteran underwent a VA examination in connection with the instant claim in February 2010.  He complained of decreased visual acuity and light sensitivity in the right eye.  His only treatment involved progressive addition lens spectacles.  His visual acuity, as measured by the VA examiner, without correction was 20/200 right eye, and 20/50 -1, left eye, and with correction was 20/40 +2 right eye, and 20/20 left eye.  The examiner determined that neither Goldmann visual fields nor any further special testing was necessary.  Based on the examination results, the examiner diagnosed: (1) cataract of the right eye, (2) history of traumatic iritis is at least as likely as not the cause of his photophobia of the right eye, (3) pseudophakia, right eye, (4) pingueculae, both eyes, (5) myopia, both eyes, (6) astigmatism, right eye, (7) presbyopia.  

Likewise, at a non-VA eye examination in September 2012, which was performed for his state's Division of Motor Vehicles, he had visual acuity in the right eye of 20/40 with and without best correction.  It was noted that there were no field deficits that could compromise driving ability.  The sole diagnosis was cataract.  

There is no further evidence of record pertinent to the severity of the Veteran's service-connected right eye photophobia during the instant period of appellate review.    

This evidence shows that the Veteran's best visual acuity with corrected distance vision was 20/40.  The difference between the right eye and left eye was only 2 diopters (+2 in the right eye and 20/20 in the left eye).  Therefore, the disability rating is determined by the corrected visual acuity.  See 38 C.F.R. § 4.76(b).  As directed by DC 6066, the highest rating assignable is noncompensable where visual acuity is 20/40 in the service-connected right eye and where the visual acuity of the non-service-connected left eye is considered to be 20/40.  See 38 C.F.R. §§ 4.75(c), 4.79, DC 6066.  There is also no evidence of incapacitating episodes, and the Veteran has not indicated otherwise.  To the contrary, the VA examiner noted that the Veteran's only treatment is progressive addition lens spectacle.    

Finally, there is no basis for considering ratings for impairment of visual fields.  The Veteran testified at his Board hearing that he has some loss of field of vision in the right eye in addition to a decreased visual acuity.  Hr'g Tr. 3.  However, the measurement of a compensable visual field impairment is a complex medical question not within the competence or common knowledge of a lay person.  Therefore, without regard to the reliability of the Veteran's assertions on this question, a higher rating is not assignable on the basis of impairment of visual fields.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Otherwise, as discussed above, the objective and competent medical evidence affirmatively demonstrates that there is no visual field defect.  

In light of the above, the Board finds that an initial compensable disability rating is not assignable for the Veteran's right eye photophobia.  "Staged ratings" are not warranted because the schedular criteria for a compensable rating were not met at any time during the period under appellate review.  See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27.

This determination is intended to account for all of the demonstrated eye symptomatology.  Although the Veteran is shown to have numerous other non-service-connected disorders in the right eye, the competent evidence does not adequately distinguish the symptoms attributable solely to the service-connected photophobia.  Accordingly, for the limited purpose of this determination, the Board has attributed all demonstrated symptoms to the service-connected right eye photophobia.  See Mittleider v. West, 11 Vet. App.181, 182 (1988) (per curiam). 

The Board's findings above are based on schedular evaluation.  Here, the Veteran testified at his November 2012 Board hearing that he has problems with depth perception and direct sunlight or very light areas.  Hr'g Tr. 3.  He also testified that he must squint to prevent the sun from irritating his eye.  Hr'g Tr. 3.  Further, he has trouble reading and cannot drive at night.  Hr'g Tr. 5-6.  The objective evidence does not confirm these symptoms.  In fact, the only symptom he mentioned during the February 2010 VA examination was light sensitivity in the right eye.  His only treatment was noted to involve progressive addition lens spectacles.  Nonetheless, for purposes of this discussion, the Board will accept the Veteran's testimony as true.  In doing so, the Board observes that his complained of symptoms are not accounted for in the applicable diagnostic codes.  

Nonetheless, referral for extraschedular consideration is not warranted because the Veteran's disability picture does not exhibit other factors such as marked interference with employment or frequent periods of hospitalization.  First, there is no indication of hospitalization, and the Veteran has not alleged otherwise.  Second with regard to his employment, the Veteran testified at his Board hearing that he is a city letter carrier.  In this capacity, he has difficulty reading, and he has to wear sunglasses.  Hr'g Tr. 5-6.  This degree of impairment, while it may interfere to some degree with his work, is not considered exceptional or unusual.  To the contrary, difficulty reading and needing to wear sunglasses is the expected disability picture for photophobia, as demonstrated by the schedular rating criteria, which fully account for such symptomatology.  

The Veteran further testified that he does not drive at night any more.  Hr'g Tr.  6.  He did not, however, indicate that this limitation interferes with his work.  In fact, the vision specialist in September 2012 expressly noted that the visual impairment did not compromise the Veteran's ability to operative a motor vehicle safely.  The Board finds that this assessment is particularly persuasive as it is an independent and objective assessment intended to best represent the Veteran's visual acuity for purposes of determining visual fitness to operate a motor vehicle.  (A September 2009 notice from this same state agency shows that the Veteran's driving privilege was cancelled.  This notice makes clear, however, that this action was taken due to the Veteran's failure to comply with restrictions, not due to impairment caused by his service-connected disabilities.)

Therefore, the Board must conclude that his disability picture is not unusual or exceptional.  Consequently, referral for extraschedular consideration is not appropriate.  38 C.F.R. § 3.321.  

B.  External Angle Right Eye Scar and Right Eyebrow Scar

The Veteran's service-connected external angle right eye scar and right eyebrow scar is currently assigned an initial non-compensable disability rating under DC 7800.  

Under 38 C.F.R. § 4.118 (2012), DC 7800 afford ratings for burn scars of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck.  The diagnostic criteria direct that a 10 percent rating is assigned for scars with one characteristic of disfigurement.  A 30 percent rating is assigned for scars 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.  A 50 percent rating is assigned for scars 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.  The maximum schedular rating, 80 percent rating is assigned for with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  38 C.F.R. § 4.118.  

The 8 characteristics of disfigurement, for purposes of evaluation under section 4.118, are as follows: Scar 5 or more inches (13 or more cm.) in length.  Scar at least one-quarter inch (0.6 cm.) 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 sq. cm.).  Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.).  Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.).  Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).  38 C.F.R. § 4.118, DC 7800 Note (1).  
 
Anatomical loss of the eye is to be rated under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate.  38 C.F.R. § 4.118, DC 7800 Note (2).  Unretouched color photographs are to be taken into consideration when evaluating under these criteria.  38 C.F.R. § 4.118, DC 7800 Note (3).  Disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, are to be separately evaluated under the appropriate diagnostic code(s), applying § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code.  38 C.F.R. § 4.118, DC 7800 Note (4).  The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation.  38 C.F.R. § 4.118, DC 7800 Note (5). 

Other pertinent diagnostic codes consist of DC 7804 scar(s), unstable or painful.  38 C.F.R. § 4.118 (2012).  

These diagnostic criteria have not been amended during the pendency of the instant period of appellate review.  See 38 C.F.R. § 4.118 DCs 7800-7805 (last amendment effective on October 23, 2008).  

With regards to the merits of the instant appeal, the Board finds after a careful review of the pertinent evidence that an initial rating of 30 percent is warranted for the disability.

In particular, the Veteran underwent a VA examination in July 2010 in connection with his claim.  The VA examiner found one of the scars to be adherent to the underlying tissue and elevated or depressed.  These findings represent two separate characteristics of disfigurement as defined in Note (1) to DC 7800.  Accordingly, the Veteran's disability picture satisfies the criteria for assignment of a 30 percent rating.  See 38 C.F.R. § 4.118, Note (5).  

However, a rating higher than 30 percent is not assignable.  First, the evidence does not demonstrate visible or palpable tissue loss in conjunction with either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips).  To be clear, the July 2010 VA examination affirmatively shows that there was gross distortion or asymmetry due to the right eye looking slightly rotated and lower than the left.  However, the July 2010 VA examination also affirmatively shows that there was no associated skin breakdown over either scar.  Therefore, the disability involves asymmetry, but not visible or palpable tissue loss, which is required for the disability to more nearly approximate the next higher rating under DC 7800, 50 percent.  See 38 C.F.R. § 4.118.  

Additionally, the July 2010 VA examination shows that the scars are not productive of four or five characteristics of disfigurement.  Except for the two characteristics of disfigurement supporting the 30 percent rating, the VA examiner affirmatively reported that there were no other characteristics of disfigurement.  See Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011) (the Board was incorrect to find that a skin disability was not "exceptionally repugnant" on the basis that no medical evidence characterized it as such).  

The disability is also not productive of anatomical loss of the eye, pain, instability, or residuals of associated muscle or nerve injury, as affirmatively shown by the evidence.  Thus, a higher rating is not available under any potentially alternative diagnostic code.  See 38 C.F.R. § 4.118, DC 7800 Notes (2), (4), DC 7804.  

At the Board hearing, the Veteran thoroughly described the impairments caused by the external angle right eye scar and right eyebrow scar.  Because his testimony presents symptoms not contemplated by the rating schedule, it is will be addressed in the extraschedular discussion immediately below.  

In summary, the Board finds that an initial 30 percent schedular rating, but no higher, is warranted for the Veteran's external angle right eye scar and right eyebrow scar.  "Staged ratings" are not warranted because the schedular criteria for a 30 percent rating were met throughout the entire period under appellate review.  See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27.  

The Board finds that referral for extraschedular consideration is not appropriate.  Initially, it is important to acknowledge the Veteran's own testimonial statements indicating that he has emotional effects and loss of confidence due to these scars.  Certainly, such factors are not contemplated by the schedular criteria of DC 7800.  However, as noted in the Introduction section herein above, the Veteran's complaints of psychological effects constitute a claim of entitlement for a psychiatric disorder.  Accordingly, such symptomatology is not for consideration in the instant appeal.  

Otherwise, the Veteran has not indicated that his scar symptomatology causes marked interference with his employment as mail carrier.  Moreover, the July 2010 VA examiner noted the Veteran's report that he had lost no time from work due to his scars; the examiner found that the scars had no significant effects on the Veteran's occupation.  Thus, the disability does not reflect an exceptional or unusual disability picture as contemplated for extraschedular consideration.  Accordingly, referral for extraschedular consideration is not in order.  38 C.F.R. § 3.321(b); Thun, 22 Vet. App. 111, 115.

C.  Other Considerations

As a final matter with regard to both service-connected disabilities, the Board acknowledges the Veteran's equitable arguments, such as he wrote in a September 2010 statement, emphasizing that he is an honorably discharge Veteran with service-connected injury and should be compensated.  The Board takes his equitable arguments seriously.  Nonetheless, the Board has no jurisdiction and is otherwise without authority to grant an increased disability ratings on an equitable basis.  See 38 USCA §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).

Finally, it is important to note that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been presented to the Board as a component of the initial rating claims on appeal.  Such a claim is not otherwise presently in appellate status before the Board.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran is free to raise such a claim at any point in the future, and the instant determination is in no way intended to represent a finding as to the merits of such a claim, if subsequently raised.  See 38 C.F.R. § 4.16 (2012); Suttmann v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for a TDIU, even if previously and finally denied, constitutes a new claim).  


ORDER

An initial compensable rating for right eye photophobia is denied.

An initial 30 percent rating, but no higher, for the external angle right eye scar and right eyebrow scar, is granted, subject to the regulations governing the payment of VA monetary benefits.


REMAND

The Board finds, after careful consideration, that the claim of service connection for cataracts must be remanded to allow the AOJ the opportunity to issue the Veteran a statement of the case (SOC).  

Historically, the Veteran filed an original claim in September 2009.  He claimed "right eye injury."  Subsequently, the RO developed the claim broadly to include all eye disorders shown by the record.  Consistent with this broad development, the RO granted service connection for right eye photophobia in the February 2010 rating decision currently on appeal, but also expressly denied service connection for cataracts.  

One month after this rating decision, the Veteran filed his notice of disagreement (NOD) in March 2010.  He wrote, in pertinent part, that he disagreed with the February 2010 rating decision because "[i]t omitted surgical procedures such [as] cataract removal as well as lens implantation."  

This sequence of events, in summary, shows that the Veteran filed a claim of service connection for an eye condition, including cataracts.  The February 2010 rating decision denied service connection for cataracts, and the Veteran then disagreed with that determination.  In such cases, where a claimant has timely filed a NOD disagreeing with a determination of the AOJ on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC.  38 CFR § 19.9(c); see also Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

Consequently, under the circumstances of this case, the Board has no discretion and is required to remand this issue to the RO for the issuance of an SOC.  38 CFR § 19.9(c); see also Manlincon, 12 Vet. App. at 240-41.

Accordingly, the case is REMANDED for the following action:

The AOJ must take the appropriate steps to issue the Veteran a statement of the case (SOC) addressing the issue of entitlement to service connection for cataracts.  The SOC must include (a) a summary of the evidence in the case relating to the issues; (b) a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and (c) the determination on the issue and the reasons for the determination.  The SOC should also include a complete description of the Veteran's rights and responsibilities in perfecting an appeal on this issue, and afford him an appropriate time period to respond.  

Thereafter, if the Veteran files a timely substantive appeal (VA Form 9) on the issue, the AOJ should undertake any further action indicated, and then readjudicate the claim in light of the entire evidentiary record, issuing a supplemental statement of the case (SSOC), if indicated.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
S. HENEKS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs