Citation Nr: 1336202 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-37 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial compensable evaluation for a bilateral eye disability prior to August 13, 2013, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1956 to November 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which implemented the Board's September 2009 award of service connection for a bilateral eye disability, and assigned a noncompensable evaluation for that disability, effective November 30, 2004-the date he filed for service connection. The Veteran timely appealed his assigned disability evaluation. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2010; a transcript of that hearing is associated with the claims file. This case was remanded for further development in August 2013. During the pendency of the appeal, the RO awarded a 10 percent evaluation for the Veteran's bilateral eye disability, effective August 13, 2013-the date of his VA examination-in an October 2013 rating decision. The Board has therefore recharacterized the issue on appeal in order to comport with this award of benefits. The development ordered in the August 2013 remand having been completed, the case has been returned to the Board for further appellate review at this time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. By resolving doubt in favor of the Veteran, the disability picture more closely approximates active chronic conjunctivitis, including findings of redness, thick conjunctivae, and mucous secretion, throughout the appeal period. 2. Throughout the appeal period, the Veteran's bilateral eye disability does not demonstrate any visual field defects, a corrected visual acuity less than 20/40, or any visible or palpable tissue loss and gross distortion or asymmetry ("disfigurement") of the Veteran's eyes. CONCLUSION OF LAW The criteria establishing an initial 10 percent evaluation, but no higher, beginning November 30, 2004, for a bilateral eye disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.84 (2008), 4.7, 4.79, Diagnostic Codes 6018, 6034, 6061-81, 4.118, Diagnostic Code 7800 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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 that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased evaluation claim for his bilateral eye disability arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is 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. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a November 2010 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. The Board acknowledges that in August 2013 it remanded the claim for further development to include obtaining outstanding VA treatment records and obtaining a VA examination. The Veteran underwent a VA examination on August 13, 2013-upon which the increase of benefits noted in the Introduction is predicated-and the VA treatment records through September 2013 have been associated with the Virtual VA efolder. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). During the appeal, the Veteran and his spouse averred that throughout the appeal period his eyes have been red, painful, crusting, watering/tearing, and discharging. He specifically indicated that he has trouble driving at night and that he has to pry his eyes open in the mornings due to mucous build up. Throughout the Veteran's VA treatment records, he is intermittently shown to have pain, redness, discharge, etc. in his eyes, including watering and crusting. He is shown to have a pinguecuelae in both his eyes throughout the appeal period. None of his corrected visual acuities noted in his VA treatment records is shown to be worse than 20/40. The Veteran underwent a VA examination of his eyes in August 2005. At that time he stated that he had intermittent symptoms with remissions, which he treated with eyedrops with poor results. The examiner noted that there were no periods of incapacitation due to his eye disability. The Veteran reported pain, redness, burning or stinging, and crusting bilaterally, especially in windy conditions. He also had blurring vision with difficulty reading small print. On examination, the Veteran did not have keratonconus. He had corrected near and far visual acuity of 20/20 bilaterally. There was no diplopia or visual field defect noted. There was no active eye disease shown on examination at that time. The Veteran did not have a nystagmus, loss of eyebrows, loss of eyelashes, scotoma, or lens removal bilaterally; his eyelids were normal. He was shown to have pingueculum nasally bilaterally. The Veteran underwent a private eye examination in April 2008. During that examination, he reported constant redness, decreased visual acuity when driving at night with glaring, and blurred vision. He indicated that he treated his eyes with Visine. His visual acuity noted at that time, at worst, was 20/40 bilaterally, though it appears that the corrected visual acuity was actually 20/30-2 bilaterally. Visual field testing was not performed at that time. The Veteran's lenses were noted as being bilaterally abnormal with pingueculae at that time. In June 2008, the Veteran underwent another VA examination. The Veteran's report of symptomatology and the findings are generally consistent with both the VA and private examinations noted above. Of note, the Veteran corrected near and far visual acuity was 20/40 bilaterally at that time. There was no visual field defect noted. The Veteran's eyelids were normal, and there was no loss of eyebrows or eyelashes noted. The Veteran was noted at that time to have pingueculae nasally bilaterally on that examination. He also had a 1+ nuclear cataract bilaterally. The examiner noted that the Veteran's conjunctivitis was active at that time. The Veteran's pingueculae found on examination was related to his 50-plus years of living in Arizona, as such are common features found in long-term residents of that state. The Veteran's cataracts were determined to be age-related at that time. The Veteran underwent another private eye examination in August 2009. The Veteran reported having his eyes "stuck together" in the mornings at that time. The Veteran's corrected visual acuity was 20/20-2 in the right eye and 20/25 in the left eye at that time. Visual field testing was not performed at that time. Again, bilateral pingueculae were noted as the Veteran's only abnormality on examination, and the private examiner noted that such was "not visually significant." The Veteran underwent a private eye examination in September 2010, during which he reported a number of similar complaints regarding blurry vision, and glaring/"starbursts" at night while driving. His unaided visual acuities were noted as being 20/50 in the right eye and 20/40 in the left eye. His corrected visual acuity was noted as being 20/40 bilaterally. After examination, the Veteran was noted as having bilateral pinguecula and bilateral cataracts. The Veteran's symptomatology associated with his cataracts including "glare, halos, trouble reading/driving, [and] night driving difficulty." "No visual issues" were associated with the Veteran's bilateral pinguecula. The Veteran appears to have undergone a private eye examination on June 10, 2013 with a private examiner who used VA's disability questionnaire for eye conditions. The Veteran reported having cataract surgery two years prior and that he has been having a burning feeling frequently, though it comes and goes variably. He also occasionally gets blurry vision and continued to have glaring at night. The Veteran's corrected distance and near visual acuity was noted as being 20/40 or better bilaterally. The Veteran was not shown to have diplopia. The Veteran was shown to have ptosis due to dermatochalasis due to meibomium gland dysfunction. The Veteran did not have a visual field defect at that time, and visual field testing was not performed. The examiner noted that the Veteran's ptosis of the eyelids did not cause scarring or disfigurement, nor did it decrease his visual acuity or cause any other visual impairment. The Veteran was not shown to have any incapacitating episodes attributable to an eye condition at that time, nor did his bilateral eye disability impact his ability to work. Finally, the Veteran underwent a VA examination of his eye disability on August 13, 2013. During that examination, the Veteran was diagnosed with bilateral pinguecula, pteryium and pseudophake. On examination, the Veteran's corrected distance and near visual acuity was 20/40 or better bilaterally. The Veteran did not have any diplopia. The Veteran was noted as having bilateral pinguecula and psuedophake. The Veteran did not have any visual field defects noted, and Goldmann's charts were attached with the examination report. The Veteran was noted as having active conjunctivitis conditions at that time, including bilateral pinguecula; his conjunctivitis symptomatology was noted as not decreasing his visual acuity or causing any other visual impairment. The examiner noted that there was no scarring or disfigurement attributable to his eye condition shown at that time, nor did the Veteran have any incapacitating episodes due to his eye condition. The Veteran's eye disability did not impact his ability to work. The examiner concluded that there were no pterygiums at that time, and that the Goldmann fields were essentially normal bilaterally. The Veteran's best corrected visual acuity was 20/25 bilaterally in both far and near. Based on the foregoing evidence, by resolving doubt in favor of the Veteran, the Board awards an initial 10 percent evaluation for his bilateral eye disability effective November 30, 2004, under Diagnostic Code 6018 for his active conjunctivitis. The Board notes that the Veteran and his spouse's testimony during the November 2010, as well as his complaints throughout his VA treatment records and during both his private and VA examinations, that he experiences redness, pain, crusting, and watering/tearing of his eyes. The Board finds that the Veteran's statements are competent, credible and highly probative. Complaints of such symptomatology are shown to have existed well before the August 13, 2013 examination, and are generally consistent throughout the entire appeal period. Accordingly, the Board finds that the Veteran's bilateral eye disability more closely approximates a disability picture consistent with active nontrachmous conjunctivitis throughout the appeal period, and a 10 percent evaluation under Diagnostic Code 6018 is assigned, beginning November 30, 2004-the earliest possible effective date assignable in this case. See 38 C.F.R. § 4.84, Diagnostic Code 6018 (2008); 38 C.F.R. § 4.79, Diagnostic Code 6018 (2013). Such an assignment represents the highest possible assignable evaluation under that Diagnostic Code. In order to get a higher evaluation, the Veteran must demonstrate visual acuity or visual field defects, or disfigurement under Diagnostic Code 7800, which correlates to an evaluation in excess of 10 percent. With respect to the visual acuity and visual field defects, the Board notes that during the pendency of this appeal the Rating Schedule for evaluating disabilities of the eyes was revised and amended. See 73 Fed. Reg. 66543-54 (Nov. 10, 2008). The effective date of the revisions is December 10, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. However, the Board notes that under both the old and new regulations regarding visual acuity defects, the Veteran's visual acuity does not warrant a compensable evaluation. The Veteran's corrected visual acuity throughout the appeal period never exceeds 20/40, and as such his visual acuity defect does not commensurate to a compensable evaluation under either the old or new regulations. Likewise, with respect to a higher evaluation due to a visual field defect, the evidence of record demonstrates that throughout the appeal period, the Veteran's bilateral eye disability did not include a visual field defect. In fact, the most recent VA examination and private examination in August 2013 and June 2013, respectively, agree on this fact; moreover, the Goldmann's charts associated with the Veteran's August 2013 VA examination are interpreted by that examiner to be "essentially normal." In light of these consistent findings, the Board finds that there is no visual field defect associated with the Veteran's bilateral eye disability throughout the appeal period and therefore evaluations for that type of a complication are not applicable in this case. Finally, the Board notes that the Veteran's spouse argued that the Veteran's eyelid surgery, which occurred in February 2011, should warrant a higher evaluation because one of his eyelids is lower than the other after his surgery; in essence, she argues in the November 2010 hearing, that the Veteran's eyelid surgery presents a "disfigurement" under Diagnostic Code 7800. The Board is cognizant that the Veteran and his spouse are competent to report their lay assertions that such represents a distortion or asymmetry and therefore is a "disfigurement." See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board additionally finds them to be credible in their assertions. The Board notes that there is no visible or palpable tissue loss noted with respect to the Veteran's eyelids or eyes noted throughout the appeal period, nor does the Veteran or his spouse allege any such tissue loss throughout the appeal period. Thus, the Board finds that a higher evaluation than 10 percent under Diagnostic Code 7800 is not applicable in this case. See 38 C.F.R. § 4.118, Diagnostic Code 7800 (2013). Moreover, even if the Board were to accept that the noted dermatochalasis noted in the June 2013 private examination is comparable to such tissue loss, that examiner and all the other examiners of record noted that the Veteran's eye disability does not have any scarring or disfigurement associated with it. The Board finds the objective, medical opinions from those examiners-both private and VA-to be more probative than the subjective lay opinions regarding whether the Veteran's eyelid condition or any other eye symptomatology is "disfiguring." The Board thus finds that there is no "disfigurement" due to the Veteran's bilateral eye disability, to include whether there is gross distortion or asymmetry of the Veteran's eyes. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected bilateral eye disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Finally, the Board has also considered whether a remand is necessary in order to determine whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In this case, the evidence of record does not indicate that the Veteran is currently unemployed due to his bilateral eye disability, nor does the Veteran assert at any point throughout the appeal period that he is currently unemployed due to that disability. In fact, several of the examiners of record, particularly the private examiner in June 2013 and the VA examiner in August 2013, indicated that the Veteran's bilateral eye disability would not impact his ability to work. Since there is not any evidence of record that the Veteran's bilateral disability causes him to be unable to secure and follow substantially gainful employment, the Board finds that a remand for such an opinion is not required in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board finds that a 10 percent evaluation, but no higher, is warranted throughout the appeal period, beginning November 30, 2004, for the Veteran's bilateral eye disability. See 38 C.F.R. §§ 4.84 (2008), 4.7, 4.79, Diagnostic Codes 6018, 6034, 6061-81, 4.118, Diagnostic Code 7800 (2013). In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 10 percent evaluation, but no higher, for the Veteran's bilateral eye disability, beginning November 30, 2004, is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs