Citation Nr: 1328074 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-04 352A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for a low back disability. 2. Entitlement to an initial compensable disability rating for bilateral pinguecula. REPRESENTATION Appellant represented by: Kenneth LaVan, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active naval service from July 2004 to April 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The June 2009 rating decision granted service connection for bilateral pinguecula with an evaluation of 0 percent effective from the date of service connection on April 10, 2008; the decision also granted service connection for lumbar spine strain with an evaluation of 0 percent from the date of service connection on April 10, 2008. A decision review officer (DRO) decision in January 2010 granted an increased rating for the low back disability to 10 percent; subsequently in a March 2013 DRO decision, the disability rating for the service-connected low back disability, diagnosed as lumbar spine strain with L4-L5 and S1 degenerative joint disease, was increased to 40 percent from April 10, 2008. This increase did not satisfy the Veteran's appeal. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2012 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. When this case was before the Board in August 2012, it was decided in part and remanded in part for additional evidentiary development; it has since been returned for further appellate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file was completed to ensure thorough review of the evidence in this case. The evidence of record demonstrated that the Veteran was employed. As such, the Board finds that the issue of entitlement to a total rating based on individual unemployability was not reasonably raised by the record and, thus, the merits of said claim will not be addressed herein. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). FINDINGS OF FACT 1. The service-connected low back disability is not shown to be productive of more than a limitation of motion with forward flexion of the thoracolumbar spine restricted to 30 degrees or less; neither unfavorable ankylosis, nor incapacitating episodes due to intervertebral disc syndrome are demonstrated. 2. Throughout the pendency of this appeal, the Veteran's bilateral pinguecula was productive of unimpaired visual acuity; pinguecula; conjunctivitis; dry eyes; feelings of a foreign body in the right eye; sensitivity to brighter lights; and redness. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating higher than 40 percent for low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a including Diagnostic Codes 5237, 5243 (2012). 2. The criteria for an initial compensable evaluation for bilateral pinguecula have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.79, 4.118, 4.124a, Diagnostic Codes 6037, 7800 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim the Veteran was mailed a letter in March 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examinations. The Board notes that the Veteran submitted a VA Form 9 in April 2013, requesting a videoconference before the Board. The Veteran's representative also submitted a Notice of Disagreement in May 2013, requesting an informal telephonic conference. However, as noted above, the Veteran was provided a videoconference before the undersigned in June 2012. The regulations essentially provide that an appellant is entitled to "a" hearing following an adverse decision by the RO. Once the matter is certified to the Board for appellate review, the rules of practice before the Board (specifically Rule 17 (38 C.F.R. § 20.700) provide that "a" (emphasis added) hearing on appeal will be granted if an appellant, or an appellant's representative acting on his or her behalf, expresses a desire to appear in person. Based on the language of the regulations once a particular claim is certified to the Board, appellants are entitled to one hearing before the Board on the same matter. The Veteran has been afforded this one hearing on the matters decided herein. Any deficiencies in development were addressed in the subsequent Board remand. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the Veterans Law Judge who conducts a hearing fulfill the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked). Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. General Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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. §§ 3.321(a), 4.1 (2012). 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. (2012). The evaluation of the same disability under various diagnoses is to be avoided. C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a 3-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. Barr v. Nicholson, 21 Vet. App. 303, 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. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.) 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). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 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. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); 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"). Specific Legal Criteria and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). I. Low Back Disability In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability so that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49; DeLuca v. Brown, 8 Vet. App. 202, 204 -06 (1995). The Veteran's low back disability is rated under Diagnostic Code 5237. Under this Code, a 10 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or with muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 20 percent evaluation is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 45 degrees, bilateral rotation is zero to 30 degrees, and lateral flexion to either side is zero to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (2) (2011); see also 38 C.F.R. § 4.71a, Plate V (2012). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Each range of motion measurement is rounded to the nearest five degrees. Id. at Note (4). The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (2). The notes to the revised rating formula for diseases and injuries to the spine state that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1) (2012). The Veteran contends that he is entitled to disability rating in excess of 40 percent for his service-connected low back disability. In order to warrant an evaluation of 50 percent, the Veteran must exhibit unfavorable ankylosis of the entire thoracolumbar spine. Turning to the evidence of record, the Veteran was afforded a VA examination in April 2009 in which he reported a sharp, pinching nerve-type pain in his back. He reported experiencing flare-ups three to four times in six months that could be caused by lifting or jumping up and coming down the wrong way. With a flare, he had increased pain, decreased range of motion by "a lot", weakness, fatigue and incoordination. He denied any shooting pains, weakness or numbness down either leg, no bowel or bladder changes, and no incapacitating episodes. Physical examination of the spine showed no spasm or tenderness; flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, right and left rotation to 30 degrees. He had pain with extremes on extension and right lateral flexion; repetitive motion also increased his pain; straight leg raising was negative. The VA examiner diagnosed low back strain. The Veteran submitted a statement in January 2010, stating that had bearable pain during the day but had to take some muscle relaxers a few times a week. At night, he used a medical wedge to reduce the pain as he lay down. He reported sleep disturbances due to his back. VA treatment records showed complaints and diagnoses of low back pain. An MRI in January 2010 showed mild degenerative changes at L4-5 and L5-S1 without significant canal or foraminal narrowing at any level. In March 2010 the Veteran submitted a lay "buddy" statement and a statement from his wife, attesting to his complaints of back pain and discomfort. The Veteran was afforded a VA examination in June 2011 in which he reported constant pain in the low back, described as spasms along with sharp pain. He did not report bowel or bladder complications or radiculopathy. He reported flare-ups of increased pain three to four times a month, aggravated by prolonged sitting, exercise, and lying flat. He had no incapacitating episodes of back pain as defined by bed rest prescribed by a physician. Physical examination did not reveal any atrophy, posture abnormalities, fixed deformities, or abnormalities of the thoracolumbar spine musculature. There was painful motion, tenderness in the lumbar musculature, and some mild guarding due to pain. There were no spasms or weakness observed. Range of motion testing showed flexion to 70 degrees with pain at the end range, extension 15 degrees with pain at the end range, right and left lateral flexion of 30 degrees with pain at the end range in both directions, right and left rotation of 30 degrees with pain at the end range in both directions. The Veteran had a negative straight leg raise bilaterally. Bilateral lower extremity strength, sensation, and reflexes were normal. There was no change in active or passive range of motion during repeat motion testing and no additional losses of ranges of motion or less of function due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups, or loss of function. As noted above, the Veteran testified before the undersigned in June 2012 as to his low back symptoms to include muscle spasms; burning sensation; sleep disturbances; the use of medication, hot baths, massages, and heating pads. He also testified that the use of Hydrocodone for his back would put him "out of commission for the rest of the day", making him just lay down and sleep. He reported taking this medication six to eight times a month when all other treatment did not work. In response to the Board's August 2012 remand, the Veteran was afforded a VA examination in November 2012 in which he reported using Ibuprofen for pain control and only occasionally narcotics. He reported no neurological symptoms. He reported flare-ups to include with physical activities, playing with kids, and some weather changes. Range of motion testing showed forward flexion to 15 degrees with painful motion at 15 degrees, extension to 10 degrees with painful motion at 10 degrees, right lateral flexion to 15 degrees with painful motion at 15 degrees, left lateral flexion to 20 degrees with painful motion at 20 degrees, right and left lateral rotation to 20 degrees with painful motion at 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion following testing. Functional impairment was noted as pain on movement and uncomfortable pressure. Muscle strength, reflex, and sensory testing were normal. Straight leg raising testing was negative, and the Veteran did not have radicular pain or any signs of radiculopathy. No other neurologic abnormalities were noted. The examiner noted that the Veteran had intervertebral disc syndrome (IVDS) and incapacitation episodes to include episodes over the past 12 months with a total duration of less than one week. Based on a careful review of the record, the Board finds that the service-connected low back disability does not meet the criteria for the assignment of a rating higher than 40 percent evaluation for any period of the appeal. Simply, given that range of motion has been shown in each case of objective testing, ankylosis of the entire spine, unfavorable or otherwise, has not been shown or indicated on VA examination or in the treatment records. The Board next turns to the question of whether the Veteran is entitled to higher ratings based upon the diagnostic criteria pertaining to IVDS, which is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an increased rating of 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks during the past 12 months. An increased rating of 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). In this case, although the Veteran testified before the undersigned that Hydrocodone for his back would put him "out of commission for the rest of the day", making him just lie down and sleep. He reported taking this medication six to eight times a month when all other treatment did not work. The November 2012 VA examination also noted incapacitation episodes to include episodes over the past 12 months with a total duration of less than one week; however, because there is no evidence that the Veteran's physician has prescribed bed rest for at least four weeks in any given year under appeal, the Board accordingly finds that there is no evidence indicating that that the Veteran's reported low back flare-ups resulted in incapacitating episodes under the criteria set forth in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes sufficient to warrant a higher ratings based upon incapacitating episodes. Due consideration has been given to the assignment of ratings for separate and distinct manifestations of the service-connected disability; however, the record does not support assigning a separate rating for the symptoms associated with his disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). The Board is required to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202 (1995). The Board finds that the effect of pain on the basis of limitation of motion has been considered because although VA examinations and treatment records have shown that the Veteran experiences pain on motion and flare-ups on activity, there is no evidence to suggest that the functional loss is the equivalent to the next higher rating. Evidence of pain is an important factor for consideration. However, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). Without any evidence of further functional loss as a result of the Veteran's pain, a higher disability evaluation is not warranted under DeLuca. VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the Veteran's account of his symptoms, in the form of his correspondence to VA, and his testimony before the undersigned. Although the Veteran is competent to report his own overall symptomatology, there is no medical evidence showing a degree of impairment due to his low back disability that approximates a disability rating in excess of 40 percent. In the Board's opinion, the objective medical evidence prepared by skilled examiners is more probative than the statements of the Veteran. In this regard, the Board notes that the examiners have considered the Veteran's statements in assessing the degree of disability and have addressed the specific rating criteria applicable to a low back disability. Nothing in the statements of the Veteran demonstrates the presence of sufficient impairment to warrant more than the currently assigned rating of 40 percent. II. Bilateral Pinguecula At present, the Veteran's service-connected bilateral pinguecula has been assigned a noncompensable rating pursuant to Diagnostic Code 6034. 38 C.F.R. § 4.79, Diagnostic Code 6034, instructs VA to evaluate the disability at hand under diagnostic codes concerning visual impairment, disfigurement, conjunctivitis, or other disability depending on the particular findings of record. In response to his claim for service connection, the Veteran was afforded a VA examination in April 2009 in which he reported yellow callus nasally on each eye that were occasionally annoying, resulting in a foreign body sensation that was improved with artificial tears. Physical examination showed distance visual acuity without correction right eye (OD) 20/15 and left eye (OS) 20/20; near visual acuity without correction was OD 20/20 and OS 20/20. Examination showed good color and no edema. As noted above, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2012 as to his eye symptoms to include dry eyes, feeling that there is was a foreign body in his right eye, and being sensitive to brighter lights. The Veteran was afforded a VA examination in November 2012 in which he reported having red eyes when exposed to dusty conditions. Visual acuity uncorrected and corrected, distance and near vision in the right and left eye was 20/40 or better. The examiner noted that the Veteran did not have: anatomical loss, light perception only, extremely poor vision, or blindness in either eye. Slit lamp and external eye examination was normal except for nasal pingueculium on the left and right eye. There was no visual field defect. There was conjunctivitis and pinguecula of both eyes. There was no visual acuity or other visual impairment. There was no scarring or disfigurement. The evidence of record does not demonstrate that the Veteran's service-connected bilateral pinguecula was manifested by a permanent impairment of central visual acuity or permanent impairment of visual fields. Impairment of central visual acuity and impairment of visual fields are evaluated pursuant to 38 C.F.R. § 4.79, Diagnostic Codes 6061 through Diagnostic Code 6081 (2012). Therefore, the Board finds that the Veteran's bilateral pinguecula does not more nearly approximately a compensable rating under any of the diagnostic codes pertaining to vision impairment. 38 C.F.R. §§ 4.7, 4.79, Diagnostic Codes 6061 through Diagnostic Code 6081 (2012). The evidence of record demonstrates diagnoses of conjunctivitis consistent with pinguecula. Conjunctivitis is evaluated under 38 C.F.R. § 4.79, Diagnostic Code 6018. Pursuant to Diagnostic Code 6018, a 10 percent rating is warranted for active conjunctivitis, with objective findings such as red, thick conjunctivae and mucous secretions, among other symptoms. The evidence of record does not demonstrate that the Veteran's service-connected bilateral pinguecula was manifested by active conjunctivitis or symptoms that more nearly approximated active conjunctivitis. 38 C.F.R. § 4.7. As such, the Board finds that a 10 percent rating is not warranted for pursuant to Diagnostic Code 6018 for active conjunctivitis. For inactive conjunctivitis, Diagnostic Code 6018 instructs VA to evaluate the disability based on the residuals, such as visual impairment or disfigurement. The Board has already evaluated the Veteran's service-connected pinguecula under the diagnostic codes pertaining to vision impairment and, thus, it need not be repeated here. The Board will address disfigurement below. Additionally, pinguecula is evaluated pursuant to 38 C.F.R. § 4.79, Diagnostic Code 6037. Diagnostic Code 6037, however, does not provide for a rating, but instead directs VA to evaluate the disability on the basis of disfigurement. Disfigurement of the head, face, or neck is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7800. Under this diagnostic code, entitlement to compensation is warranted when a veteran possesses at least one of eight disfiguring characteristics as defined in the Rating Schedule. The eight characteristics of disfigurement are: a scar five or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (0.6 centimeters) wide at widest part; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). The evidence of record does not demonstrate the Veteran's service-connected bilateral pinguecula was productive of any of the eight disfiguring characteristics as defined in Diagnostic Code 7800, Note (1). Further, the Board finds that there was no evidence of visible or palpable tissue loss or either gross distortion or asymmetry of one or more of the Veteran's features or paired sets of features. As such, the Board finds that a compensable evaluation is not warranted for the Veteran's service-connected pinguecula pursuant to Diagnostic Code 7800. VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence above the Board has carefully considered the Veteran's account of his symptoms, in the form of his correspondence to VA, and his testimony before the undersigned. Although the Veteran is competent to report his own overall symptomatology, there is no medical evidence showing a degree of impairment due to his bilateral pinguecula that approximates a compensable disability rating. In the Board's opinion, the objective medical evidence prepared by skilled examiners is more probative than the statements of the Veteran. In this regard, the Board notes that the examiners have considered the Veteran's statements in assessing the degree of disability and have addressed the specific rating criteria applicable to bilateral pinguecula. Nothing in the statements of the Veteran demonstrates the presence of sufficient impairment to warrant more than the currently assigned rating of 0 percent. Additional Considerations An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b) (1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected low back disability and bilateral pinguecula with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms that are not addressed by the rating schedule. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether higher ratings might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that throughout the pendency of the appeal a rating in excess of 40 percent for the low back disability and a compensable rating for bilateral pinguecula is not met. Accordingly, the claims must be denied. As the evidence preponderates against the claims, the benefit-of-the-doubt rule is not for application. ORDER Entitlement to a disability rating in excess of 40 percent for a low back disability is denied. Entitlement to an initial compensable disability rating for bilateral pinguecula is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs