Citation Nr: 1321572 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 10-48 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for dermatophytosis of the feet. 2. Entitlement to an evaluation in excess of 10 percent for retinitis, left eye, with active pathology. 3. Entitlement to an evaluation in excess of 10 percent for visual impairment secondary to chorioretinitis, left eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The veteran had active service from September 1942 to July 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. Dermatophytosis of the feet did not affect more than 20 percent of the surface area of the Veteran's body, did not affect any exposed area of the skin, and did not require systemic treatment, or treatment with any medication during the relevant period. 2. The Veteran's left eye retinitis has resulted in complaints of pain during at a least a portion of the appeal period, is estimated to affect less than one-quarter of the visual field, and has not produced any incapacitating episode during the pendency of this appeal. 3. The Veteran's corrected visual acuity in the left eye has remained 20/50 or better during the pendency of this appeal. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for dermatophytosis of the feet have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7806, 7813 (2012). 2. The criteria for an evaluation in excess of 10 percent for retinitis, left eye, with active pathology, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.84a, Diagnostic Codes 6006, 6066, 6080 (2012). 3. The criteria for an evaluation in excess of 10 percent for visual impairment secondary to chorioretinitis, left eye, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.84a, Diagnostic Codes 6006, 6066, 6080 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that he is entitled to increased evaluations for the service-connected disabilities at issue. Before addressing the appeal, the Board will consider whether VA has met its duties to notify and assist the Veteran. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran was notified via letter dated in August 2009 of the criteria for establishing an increased rating for each disability at issue in this appeal. The letter discussed the evidence required in this regard, and the Veteran's and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication. Neither the Veteran nor his representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been satisfied. No further action to provide notice is required. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has been afforded VA examinations related to the claims addressed in this decision. The Board acknowledges that VA examiners noted that some diagnostic examinations could not be conducted, or could not be completed, or that the results were not valid, because the Veteran was unable to follow directions. The Veteran has dementia with severe memory loss. The record establishes that the Veteran would not be able to follow instructions sufficiently to complete additional diagnostic testing if he were afforded additional examinations. Thus, it would be fruitless to afford the Veteran additional VA examination. No further attempt to provide VA examination is required. The record establishes that the Veteran resides in a long-term care facility. At the time of the 2010 VA examination, when he was more able to report symptoms and recall history, the Veteran reported that he had no treatment for his eyes, and no evaluations of his service-connected eye disabilities, other than at VA. There is no indication in the record that he has received non-VA ophthalmology treatment. It would be fruitless to Remand the claims addressed in this decision in order to obtain records from the nursing care facility, as there is no indication that the nursing care facility provides ophthalmology treatment. As to the Veteran's skin disorder of the feet, each VA examiner reviewed the Veteran's complete medication record and provided an opinion that no systemic or corticosteroid medication was used to treat the Veteran's dermatophytosis at any time since 2006. As the VA examiners reviewed all pertinent evidence and provided an opinion based on that evidence, the Board may rely on the opinions rendered. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). The record also establishes that, at the time of the 2012 VA examination, the Veteran was unable to recall history, unable to describe his symptoms or complaints, and unable to provide coherent answers to questions asked by clinicians. Thus, it would be fruitless to Remand the claim in order to afford the Veteran an opportunity to provide additional description of his symptoms, identify additional providers, or conduct development which requires information or assistance from the Veteran. The Board concludes that the duty to assist has been met to the extent feasible. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claims for Increased Evaluations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. This appeal addresses ratings that have been in effect. Even where assignment of a rating has been in effect, 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). The analysis in the following decision, therefore, is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A. Evaluating Skin Disability VA's Schedule for Rating Disabilities, as in effect when the Veteran submitted this claim, provides for the evaluation of disabilities of the skin at 38 C.F.R. § 4.118 . The provisions of 38 C.F.R. § 4.118, DCs 7800 through 7805 concern scars, while the provisions of 38 C.F.R. § 4.118, DCs 7806 through 7819 encompass various skin diseases, including dermatophytosis, listed at DC 7813. Disorders under 7807 through 7819 are rated using the criteria for evaluating dermatitis or eczema under DC 7806, or under the criteria for scars and disfigurement, depending upon the location, extent, and repugnant or otherwise disabling character of manifestations. Under the criteria for eczema, a 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas be affected; or systemic therapy, such as corticosteroids or other immunosuppressive drugs, must be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118, DC 7813. Where at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of the exposed areas are affected; or intermittent systemic therapy is required, such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12-month period, a 10 percent rating is assigned. Id. Facts At the time of March 2010 VA examination, the Veteran had hyperkeratotic toenails with active dermatophytosis on the toenails bilaterally. There was no oozing, crusting, or deep skin infection. The examiner noted that the Veteran had been treated in the VA dermatology clinic for the dermatophytosis of his feet for many years, but had not required treatment since 2006. The examiner noted review of the records of medications provided at the nursing home where the Veteran was residing. The examiner opined that those records, like the VA records, showed that the Veteran had not required treatment with medications for skin on his feet or the dermatophytosis, and there was no active medication for the Veteran's feet. The examiner opined that the area affected by dermatophytosis, the feet and toes, constituted 10 percent of the Veteran's surface area, with no exposed areas. The examiner stated that there was no current impairment due to the skin disability. VA examination in 2012 disclosed no change from the 2010 examination. The VA examiner spoke with the caregiver who accompanied the Veteran and reviewed the medications listed on the records which accompanied the Veteran. The Veteran himself was unable to provide information about his current symptoms, the examiner indicated, because of dementia. However, the Veteran did state that his toes hurt. The examiner called the nursing facility at which the Veteran resided and spoke to a caregiver there, who confirmed that there had been no change in the condition of the Veteran's feet. Analysis The medical and other evidence does not support increasing the Veteran's rating for his dermatophytosis. See 38 C.F.R. § 4.118, Diagnostic Code 7806. The VA examiners specifically noted that less than 5 percent of the Veteran's exposed surfaces and less than 20 percent of his total body surface was affected. There is no evidence that the dermatophytosis affected any skin outside the feet and toes during the pendency of this appeal. The evidence demonstrates that the Veteran's dermatophytosis has not caused scarring, has not required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12 months or at any time during the pendency of the appeal. Indeed, the VA examiners expressly opined that no medication of any type had been used to treat the Veteran's dermatophytosis since 2006. The Veteran does not meet or approximate any criterion for an evaluation in excess of 10 percent under any potentially-applicable Diagnostic Code. The preponderance of the evidence is against the claim. The claim for an increased rating for a skin disability must be denied. B. Evaluating Eye Disabilities Initially, the Board notes that rating criteria for diseases of the eye were amended effective December 10, 2008. The rating criteria, as revised in 2008, were in effect when the Veteran submitted his July 2009 claims and are applicable to the appeal. Historically, the RO assigned the Veteran's initial grant of service connection in 1945. The initial assignment of a 10 percent evaluation for chorioretinitis was under Diagnostic Code (DC) 1855. That diagnostic code was eliminated in a revision of the regulations, and DC 6079 was assigned for the Veteran's service-connected eye disability, recharacterized as amblyopia, left eye, secondary to healed chorioretinitis. The regulations were again revised, and the 10 percent rating in effect was continued under DCs 6099-6077. The 10 percent rating under DCs 6099-6077 for the Veteran's visual impairment secondary to chorioretinitis was in effect when the Veteran sought an increased evaluation in July 2009. Service connection has been in effect for retinitis, evaluated under DCs 6099-6077, for more than 20 years, even though the Diagnostic Code assigned has changed over the years. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (service connection for a 'disability' is not severed simply because the situs of a disability - or the Diagnostic Code associated with it - is corrected to more accurately determine the benefit to which a veteran may be entitled for a service connected disability"). This is a protected rating, and cannot be reduced, except upon a showing of fraud on the part of the veteran, or other circumstances not present in this case. 38 C.F.R. § 3.951(b). In contrast, a separate, compensable, 10 percent evaluation for retinitis with active pathology has been in effect for just over 10 years. Under the current version of the regulations, DC 6077 has been eliminated, and the criteria for evaluating visual impairment are listed under DC 6066. The fact that the disability evaluation was last assigned under DC 6099-6077 does not preclude VA from considering the case under the current criteria and applicable Diagnostic Code, DC 6066. As the rating is protected, the Board does not disagree with continuation of the characterization of the Diagnostic Code as DC 6099-6077, but notes that criteria from DC 6066 are applicable to the rating on appeal, as DC 6077 has been eliminated from the current version of the regulations. Diagnostic Code 6066 provides for noncompensable evaluation when there is 20/40 vision in one eye and service connection is not in effect for disability of the other eye. A compensable, 10 percent evaluation is warranted if corrected vision in the eye affected by service-connected disability is 20/50. A 20 percent evaluation where service connection is in effect for one eye and the vision in the affected eye is 20/200. 38 C.F.R. § 4.79, DC 6066. Retinitis is among the eye disabilities rated under DCs 6000 to 6009, which are rated on the basis of either visual impairment or on incapacitating episodes according to a General Rating Formula, whichever results in a higher rating. 38 C.F.R. § 4.79, DC 6006. The version of the regulations in effect when the Veteran's service-connected retinitis was last evaluated provided that such disability could be rated based on 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, DC 6006. Under the General Rating Formula based on incapacitating episodes, the following ratings apply: a 10 percent rating is warranted for retinitis with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the previous 12 months; a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the previous 12 months; a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the previous 12 months. A 60 percent rating is warranted for retinopathy with incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. Id. A note to DC 6006 defines an incapacitating episode as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under DC 6081, unilateral scotoma is rated at a minimum of 10 percent if it affects at least one quarter of the visual field, or if there is a centrally located scotoma of any size. Alternatively, scotoma is rated based on resulting visual impairment, if that would result in a higher rating. Facts VA treatment records dated in April 2007 reflect that the Veteran's vision was stable, and his symptoms were described as stable. The Veteran reported floaters and tearing in the left eye, but denied redness. His corrected distance vision and his corrected near vision in the left eye were each recorded as 20/50. No changes in the Veteran's left eye symptoms were noted during 2007 or 2008. An outpatient evaluation in 2008 disclosed visual acuity of 20/30 in the left eye in August 2008. On VA examination conducted in February 2010, the Veteran reported increased difficulties focusing. The examiner concluded that the Veteran had bilateral oily tear film. There was no diplopia or flashes. The examiner indicated that the Veteran denied eye pain. Objective examination revealed that corrected visual acuity was 20/50 in the left eye. The examiner noted that there was an old, longstanding chorioretinal scar, left eye. The examiner attempted to determine the Veteran's visual field, using the Goldman kinetic field examination. The examiner concluded that the Veteran's visual field was normal in both eyes, but noted that the Veteran repeatedly kept pressing the button. The Veteran had difficultly following a light and fixating. In an addendum to the February 2010 VA examination report, an optometrist noted that, although visual field testing did not demonstrate a clear visual field deficit, the retina was destroyed in approximately 20 percent of the fundus. The provider opined that it was more likely than not that there was a 20 percent reduction in the left visual field. At VA examination conducted in June 2012, the Veteran reported that his left eye constantly bothered him. The provider noted that the Veteran was not able to provide coherent answers to questions. The Veteran's vision was described as 20/50 in the left eye, but the examiner stated that the Veteran was unable to fixate in the center, was unable to provide the correct number of fingers when a hand was held in front of the Veteran's face, and was unable to follow directions to undergo visual field testing. Analysis A. Chorioretinitis The Veteran's left eye visual acuity was 20/50 during the appeal period, warranting a 10 percent evaluation. The Board notes that review of the one-year period prior to the July 2009 claim reveals corrected visual acuity of 20/30 in the left eye. Thus, evaluation of the one-year period prior to the claim demonstrates no increase in disability during that period. 38 C.F.R. § 3.400(o)(2) (authorizing an increased evaluation if disability increases in the year prior to submission of a claim for an increased rating). The Board notes that, during the appeal period, there are medical opinions that the Veteran's service-connected left eye disability resulted in visual field impairment as well as impaired visual acuity. The Board has considered whether a separate, compensable evaluation may be assigned for visual field impairment in addition to the 10 percent evaluation assigned for visual acuity impairment. The rating criteria provide that retinitis or choriodopathy may be evaluated on the basis of visual impairment or based incapacitating episodes, but do not indicate that a claimant may be separately evaluated for visual field impairment if there is both impairment of visual acuity and visual field impairment. Under DC 6011, the criteria specify that a Veteran may be evaluated either for visual field impairment or visual impairment, whichever would result in a higher evaluation. This DC indicates that a claimant cannot be separately evaluated for both visual field impairment and visual acuity impairment. Compare 38 C.F.R. § 4.79, DCs 6000-6009 to DC 6011. This interpretation is consistent with the criteria of DC 6081, used to evaluate scotoma. A minimum 10 percent rating for scotoma affecting at least one-quarter of the visual field is provided, or, alternatively, disability is evaluated based on visual acuity impairment, if that would result in higher rating. DC 6081 does not provide separate, compensable evaluations where a Veteran has both visual field and visual acuity impairment. The Board concludes that the Veteran is not entitled to a separate, compensable evaluation for both visual acuity impairment and visual field impairment. In any event, the criteria for scotoma specify that at least one-quarter of the visual field must be affected to warrant a 10 percent rating. In this case, the greatest impairment of visual field shown is a 20 percent reduction of visual field, which is less than the 25 percent impairment required for the minimum, 10 percent evaluation. Therefore, the Veteran would not meet the criteria for a separate, compensable, 10 percent rating for the retinal scar even if the rating code allowed separate compensable evaluations for visual acuity impairment and visual field impairment for a retinal scar when both symptoms are present. B. Retinitis The Board has considered whether the Veteran is entitled to an evaluation in excess of 10 percent for retinitis, based on complaints of left eye pain, under DC 6006. The Board does not disagree with the RO's continuation of a 10 percent evaluation assigned for retinitis with active pathology. The Board notes, however, that the revised rating criteria applicable to the claim on appeal do not specify that active symptoms warrant a separate, compensable 10 percent evaluation under DC 6006 in addition to a compensable evaluation based on impaired visual acuity under DC 6066. Rather, the current rating criteria specify that retinitis may be evaluated on either visual impairment or incapacitating episodes, whichever results in a higher rating. The rating criteria state, in effect, that separate compensable evaluations for both visual impairment and current symptoms resulting in incapacitating episodes are not authorized. The Board is unable to identify any additional Diagnostic Code which would warrant a separate evaluation in addition to the 10 percent evaluation currently assigned under DC 6006 and the 10 percent evaluation assigned under DC 6066. In any event, the Veteran denied pain at the time of the first VA examination during this appeal period, and the Veteran's answers to questions were described as "incoherent" at the time of the second VA examination. Thus, to the extent that the Veteran's representative argues that any subjective report from the Veteran warrants a rating in excess of 10 percent for active "pathology," the Board notes that the only symptom described was pain, and the Board further notes that, given the Veteran's dementia, an evaluation in excess of 10 percent based on any subjective report of symptoms is not warranted. There is no additional Diagnostic Code which authorizes an additional, separate, compensable evaluation for retinitis. The Board finds that the preponderance of the evidence demonstrates that there is no factual basis for an evaluation in excess of 10 percent for retinitis with active pathology of the left eye or for an evaluation in excess of 10 percent for visual impairment. Again, the Board has considered the evidence during the year prior to submission of this claim. 38 C.F.R. § 3.400(o)(2). No greater disability due to retinitis is shown during that period. Extraschedular Consideration Based upon the findings discussed in detail above, the Board finds that at no point did the Veteran's symptoms of skin disability, visual impairment, or retinitis exceed the symptoms encompassed within the rating criteria applicable to the disability. The service connected disabilities on appeal have not been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than those assigned in this rating decision, on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular criteria are adequate to rate the disabilities under consideration. The rating schedule fully contemplates the symptoms of skin and eye disabilities, including those described by the Veteran. The rating schedule provides for ratings higher than those assigned based on more significant functional impairment. The possibility of extraschedular evaluation was considered by the RO, as noted by the references to the provisions of 38 C.F.R. § 3.321(b) in the November 2010 statement of the case (SOC). There is no record that the Veteran has required hospitalization during the pendency of appeal for an eye disability. The record demonstrates that the Veteran's eye disabilities have not interfered with his ability to care for himself. Thus, neither the first nor the second criterion for referral for an extraschedular evaluation is met as to either eye disability addressed in this appeal. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Referral for extraschedular consideration is not required. ORDER The appeal for an evaluation in excess of 10 percent for dermatophytosis of the feet is denied. The appeal for an evaluation in excess of 10 percent for retinitis, left eye, with active pathology is denied. The appeal for an evaluation in excess of 10 percent for visual impairment secondary to chorioretinitis, left eye, is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs