Citation Nr: 1340910 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-43 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for herpetic keratosis of the right eye with no light perception. 2. Entitlement to an initial evaluation in excess of 10 percent for ptosis. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1973 to January 1977. This case comes before the Board of Veterans' Appeals (the Board) on appeal from September 2008 and February 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a September 2008 rating decision, the RO continued the 40 percent disability evaluation for herpetic keratosis of the right with no light perception. In a February 2010 rating decision, the RO granted service connection for headaches and assigned a 30 percent disability evaluation effective October 15, 2008. In that same decision, the RO granted service connection for ptosis and assigned a 10 percent disability evaluation effective October 15, 2008. In December 2011, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In March 2012 the Board remanded the Veteran's claims for increased rating for the eye disabilities and entitlement to a total disability rating based upon individual unemployability (TDIU) for further development. In a May 2013 rating decision, the RO increased the Veteran's disability for ptosis with right eye disfigurement to 30 percent disabling, effective December 4, 2012. Although this was a partial grant of the benefit sought as to that issue, the Board notes that the Veteran has indicated continued disagreement with the rating assigned and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an August 2013 rating decision, the RO granted entitlement to a TDIU and assigned an effective date of October 15, 2008. This is considered a full grant of the benefits ought as to the TDIU issue. Id. To date, the Veteran has not expressed disagreement with the effective date assigned for TDIU. The Veteran does have the remainder of the one-year period from September 13, 2013, to file a notice of disagreement to the effective assigned for TDIU. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's herpetic keratosis of the right eye resulted in no light perception in the right eye. 2. Throughout the entire appeal period, the Veteran's corrected visual acuity in the left eye (distance) was 20/40 or better. 3. Throughout the entire appeal period, the Veteran's right eye ptosis has been manifested by the pupil being one-half or more obscured, with a gross distortion or asymmetry of a paired set of features (eyes), visible/palpable tissue loss, and the surface contour of the corneal scar is elevated or depressed on palpation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for herpetic keratosis of the right eye are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.79, 4.80, 6007-6070 (2008). 2. For the entire appeal period, the criteria for a 30 percent rating, but no higher, for disfigurement of the right eye is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.84a, 4.118, 4.124a, Diagnostic Codes 6019, 6079, 7800, 8046 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in April 2008, October 2009, and July 2012 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have generally referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs), Social Security Administration (SSA) records, private treatment records, VA Vocational Rehabilitation records, and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examination most recently in December 2012. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the December 2012 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the December 2012 VA examination and report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its March 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's service-connected right eye disability is rated under Diagnostic Code 6001-6070. See 38 C.F.R. §§ 4.75 to 4.84a (2008). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Board notes that during the pendency of the appeal, the applicable rating criteria for eye disabilities, found at 38 C.F.R. §§ 4.75 to 4.84a, were amended effective December 10, 2008. The December 2008 revisions are only applicable to applications for benefits received by VA on or after December 10, 2008. See 73 Fed. Reg. 66,543-66,554 (November 10, 2008). As the present claim was filed before that date, in March 2008, the regulatory changes are not applicable to this claim. The overall loss of acuteness or "sharpness" of vision is determined by applying the criteria set forth at 38 C.F.R. § 4.84a (2008). In making this assessment, the best distant vision obtainable after best correction with glasses will serve as the basis of the rating, except in cases of keratoconus, where lenses are medically required. 38 C.F.R. § 4.75. Under 38 C.F.R. § 4.84a, Diagnostic Codes 6061 through 6079 provide a chart wherein the visual acuity in one eye is compared to the visual acuity in the other eye to achieve the bilateral rating. 38 C.F.R. § 4.84a, Codes 6061-6079, Table V (2008). These criteria provide that the impairment of central visual acuity is to be evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity. Id. The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a, Table V (2008). A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity in both eyes is 20/70; (2) corrected visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye is 5/200 and 20/40 in the other eye ; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6070, 6074, 6076, 6077, 6078 (2008). A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6066, 6070, 6073, 6076 (2008). A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is to 20/100 in both eyes; (2) corrected visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes 6065, 6069, 6073, 6076, 6078 (2008). A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/100; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/100; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/100; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/100; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/100 or 20/70 or 20/100, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes 6065, 6069, 6073, 6076 (2008). A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/200; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/200; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/200; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/200; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (2008). An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 15/200 and the other eye is 15/100; (2) corrected visual acuity of one eye is to 10/200 and the other eye is to 15/200; (3) corrected visual acuity of one eye is to 5/200 and the other eye is to 15/200; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 15/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (2008). A 90 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 10/200 and the other eye is 10/100; (2) corrected visual acuity of one eye is to 5/200 and the other eye is to 10/200; or (3) blindness or anatomical loss of one eye and corrected vision in the other eye to 10/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (2008). A 100 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 5/200 and the other eye is 5/100; (2) blindness or anatomical loss of one eye and corrected vision in the other eye to 5/200; or (3) blindness or anatomical loss of both eyes. 38 C.F.R. § 4.84a, Diagnostic Codes 6061, 6062, 6063, 6067, 6071 (2008). Lastly, under the old rating criteria when rating impairment of visual acuity and visual impairment when only one eye is service connected, the combined ratings for disabilities of the one service connected eye should not exceed the amount for total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. 38 C.F.R. § 4.80 (2008). The Veteran's right eye disfigurement (ptosis) has been rated as 10 percent disabling pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6019 (2008). Under this diagnostic code for either unilateral or bilateral ptosis directs that if the Veteran's pupil wholly obscured he should be rated as the equivalent of 5/200 (1.5/60); if the pupil is one-half or more obscured, it should be rated as the equivalent to 20/100 (6/30); and with less interference with vision, it should be rated as disfigurement. The criteria for evaluation of the scars is found at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7806. As with the criteria for eye disabilities, the criteria for evaluating skin disorders were revised during the pendency of this case, effective October 23, 2008. These revisions were specifically limited to claims filed on or after October 23, 2008. Here, the Veteran's claim was filed in March 2008. Accordingly, the revised schedular rating criteria are not applicable in this case and those in effect prior to October 23, 2008 must be applied. Former Diagnostic Code 7800, in effect prior to October 23, 2008, evaluates disfigurement of the head, face, or neck and provides for a 10 percent rating for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). The eight characteristics of disfigurement are: scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). See 38 C.F.R. § 4.118, former Diagnostic Code 7800, Note 1 (2008). Factual Background and Analysis The Veteran contends that his herpetic keratosis of the right eye warrants a rating in excess of 40 percent and his right eye ptosis warrants an initial rating in excess of 10 percent, and in excess of 30 percent, beginning December 4, 2012. By way of background, service connection for herpetic keratosis of the right eye was originally awarded in a June 1977 rating decision. The RO assigned a 30 percent rating, effective January 1977. In August 2002, this rating was increased to 40 percent. The Veteran filed his instant claim for increase in March 2008, which was denied in a September 2008 rating decision. The Veteran appealed and also requested separate service connection for disfigurement of the right eye. In February 2010, the RO awarded secondary right eye ptosis and assigned a 10 percent rating, effective October 2008. The Veteran appealed the ratings for both his herpetic keratosis and ptosis of the right eye. In a May 2013 rating decision, the RO increased the Veteran's rating for right eye ptosis to 30 percent disabling, beginning December 4, 2012. Following his March 2008 increased rating request, the Veteran was afforded a VA eye examination in May 2008. The examiner described the Veteran's right eye disability as herpetic keratitis with secondary glaucoma and failed corneal graft. He noted that the Veteran's symptoms have progressively worsened and is treated with eye drops. The Veteran endorsed occasional discomfort in the right eye and only has light perception vision in that eye. There are no periods of incapacitation due to the right eye, but visual acuity is worse than 5/200. Again, the Veteran only has light perception in the right eye, but left eye showed 20/20 uncorrected distance vision, 20/20 corrected distance vision, 20/100 uncorrected near vision, and 20/20 corrected near vision in his left eye. The Veteran's eyelids were normal and there was no evidence of ptosis in either eye. The examiner opined that the Veteran's blind right eye has no significant effects on his usual occupation, but it impacts his ability to participate in sports and recreation. In a September 2008 letter from the Veteran's treating ophthalmologist, he indicated that the Veteran has lost all vision in his right eye. He currently does not have any light perception in his right eye and it is contracting and scarring. The physician identified this as phthisis bulbi, and his right eye is now showing signs of elevated intraocular pressure that is currently being treating with topical medications. In December 2009, the Veteran was afforded another VA eye examination, during which his history of herpetic keratitis and corneal scarring of the right eye were noted, as well as his history of right eye surgeries. The examiner indicated that his symptoms were stable and he uses anti-glaucoma eye drops for treatment. The Veteran reported no history of trauma, eye neoplasm, or incapacitating episodes due to eye disease. The Veteran presented with pain, dryness, and a drooping lid in the right eye, and has no light perception in that eye. Visual symptoms in the left eye were within normal limits. Physical examination of the right eye confirmed no light perception, and the fundoscopic examination in the left eye was abnormal. Visual acuity in the left eye was 20/40 uncorrected distance, 20/25 corrected distance, 20/70 uncorrected near, and 20/25 corrected near. Slit-lamp testing in the right eye revealed right upper lid ptosis, engorged sclera vessels, opacified cornea, failed graft, stromal neovascularization with an irregular iris. The right eye lens was intact. There were no findings of lagophthalmos, symblepharon, nystagmus, eyelash loss, and eyebrow loss. The examiner determined that the Veteran's right eye ptosis causes his pupil to be obscured by one-half or more, but less than wholly. No eye has been removed. The examiner opined that the Veteran's right eye ptosis is secondary to his herpetic keratosis and the right eye also exhibits phthisis bulbi which makes it cosmetically different from the left eye. In addition, she found that the surface of the right eye had a grayish appearance from the clouded cornea and no view of the iris. The Veteran's treating ophthalmologist submitted a letter in November 2011 indicating that the Veteran has "constant intractable pain coming from his deformed right eye." He advised that these attacks occur daily and impact his quality of life. He described the Veteran's right eye as "completely deformed, scared [sic] and sunken. It leaves his right eye with the appearance of being sunken in and it has an abnormal appearance." The ophthalmologist indicated that the Veteran's eye pain rating should be increased to 50 percent and his disfigurement to 30 percent. The Veteran was afforded another VA examination of the eyes in December 2012 during which the examiner indicated that the Veteran had total impairment of the right eye, right upper lid ptosis, glaucoma, and normal left eye. Visual acuity in the left eye was 20/50 uncorrected distance, 20/200 uncorrected near, 20/40 or better left corrected distance, and 20/40 or better left corrected near. The right eye had no light perception. The Veteran's right pupil was not visible due to corneal opacity and has no vision at all in his right eye. Slit lamp examination of the right eye revealed essentially the same findings as in the December 2009 VA examination, but left eye slit-lamp examination was normal except for trace cortical changes inferiorly. Under the section regarding ptosis, the examiner did not provide any discussion of the Veteran's right eye ptosis, but she completed the scarring/disfigurement section of the Disability Benefits Questionnaire (DBQ). As for scarring and disfigurement, the examiner indicated that the Veteran has both in his right eye. She noted that the surface contour of the scar is elevated or depressed on palpation (or inspection in the case of cornea or sclera) and there is gross distortion of asymmetry of one feature or paired set of features (eyes). The examiner described the scar/disfigurement as a "[f]ailed corneal graft right eye with full thickness stromal scarring with neovascularization. There is also a thin superior bleb with no leak." In statements submitted to VA, the Veteran indicated that he has developed a lazy eyelid on the right that is partially closed at all times. He endorsed symptoms of persistent/constant pain in the right eye with accompanying mild headaches. During his hearing, he testified that he believes that is right eye ptosis causes his eye to be closed more than half. Of note, the Veteran is separately service connected for his headaches and that issue has not been appealed. The Veteran's private treatment records during the appeal period show either light perception only or no light perception in the right eye and corrected left eye vision of 20/20, 20/20-2, 20/30, and 20/40. These records also note the Veteran's reports of pain and dryness in the right eye. Treating professionals have indicated that the Veteran has phthisis bulbi in the right eye following his multiple surgeries. VA treatment records show continued complaints of right eye discomfort and photophobia. He was noted to have herpetic keratosis of the right eye with secondary glaucoma and was eventually shown to have disfigurement of the right eye. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent for his herpetic keratosis of the right eye, but he is entitled to a 30 percent rating for the entire appeal period for his right eye ptosis. First, the Board notes that service-connection is not in effect for a left eye disability, and there is no evidence to show that the Veteran is blind in the left eye. Rather, corrected visual acuity was measured as 20/40 (at its worst during the appeal period) for distance and near vision in the left eye during the December 2012 VA ophthalmologic examination. Therefore, the Veteran's left eye vision is considered normal (20/40 or better) when evaluating the right eye for compensation purposes. See 38 U.S.C.A. § 1160(a)(1) (West 2002); 38 C.F.R. § 3.383(a)(1); Villano v. Brown, 10 Vet. App. 248, 250 (1997); Boyer v. West, 12 Vet. App. 142, 144-5 (1999). With respect to the herpetic keratosis of the right eye, the overwhelming evidence of record shows that the Veteran has no light perception in the right eye. The Veteran has submitted numerous statements in support of his claim contesting some VA notations that he has light perception only in his right eye. The Board agrees with the Veteran that he has no light perception in his right eye and this is well documented in the relevant treatment records during the appeal period. In other words, the Board finds that the Veteran is blind in the right eye. During the appeal period, the Veteran's left eye corrected visual acuity has been no worse than 20/40. As such, under Diagnostic Code 6070, the maximum rating is 30 percent disabling for blindness in one eye and corrected distance vision 20/40 or better in the other eye. As noted by the RO, the Veteran was also awarded a separate (and maximum) 10 percent rating for active keratitis in the right eye pursuant to Diagnostic Code 6001. As such, his rating for the right eye herpetic keratosis was considered 40 percent disabling. Although, during the appeal period the Veteran has not been shown to have active keratitis/keratosis, he has consistently reported right eye pain and discomfort. As such, the 10 percent rating for active keratitis/keratosis will not be disturbed and remains combined with the 30 percent rating for the loss of vision in the right eye. The Board has considered the Veteran's testimony that he believes his left eye visual acuity was shown to be 20/50 at some point during the appeal period. The Board finds, however, that the competent and credible evidence of record does not support that during the appeal period his left eye corrected vision was any worse than 20/40. Simply put, the evidence of record (both private and VA) does not show that the Veteran meets the criteria for a higher rating for herpetic keratosis of the right eye, and as such, a rating in excess of 40 percent for herpetic keratosis with active pathology of the right eye is not warranted. The Board finds, however, that the Veteran's right eye ptosis warrants a 30 percent rating for the entire appeal period. As noted above, ptosis is rated based upon visual impairment or disfigurement, and because visual impairment is used to rate the herpetic keratosis of the right eye, the Veteran's ptosis can only be rated separately based upon disfigurement. The Board finds that the Veteran's right eye disfigurement warrants a 30 percent rating, but no higher, for the entire appeal period. The Board is aware that a detailed disfigurement/scarring examination in December 2012 first noted symptoms such as visible or palpable tissue loss and either gross distortion/asymmetry of two features or paired sets of features (eyes), or two or more characteristics of disfigurement. The Board finds, however, that the private and VA treatment records and examination reports show the Veteran's continued complaints of right eye scarring and disfigurement. Additionally, his private ophthalmologist has specifically described the right eye disfigurement throughout the entire appeal period that includes being scarred, deformed, sunken, and has an abnormal appearance. As such, the Board finds that the competent evidence of record shows that the Veteran's right eye disfigurement is most analogous to those symptoms described under the rating criteria for a 30 percent rating under Diagnostic Code 7800 (2008). As such, a 30 percent rating for the entire appeal period for right eye disfigurement is warranted. The Board finds, however, that the criteria for a rating in excess of 30 percent for right eye disfigurement have not been met. In so concluding, the Board notes that there is no evidence that the Veteran has gross distortion/asymmetry of two features or paired sets of features, nor does he have 4 or more characteristics of disfigurement as required for a 50 percent rating under Diagnostic Code 7800. As noted above, his symptoms fit clearly within the criteria for a 30 percent rating for right eye disfigurement. Accordingly, the Board finds that the preponderance of the evidence is against a disability rating in excess of 40 percent for the Veteran's right eye herpetic keratosis for any period on appeal. Thus, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, the Board finds that the preponderance of the evidence supports a 30 percent rating, but no higher, for the entire appeal period for his right eye disfigurement. Consideration has been given to assigning staged ratings; however, at no time during the period in question have the disabilities warranted a higher rating than those currently assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected right eye disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's right eye disabilities and the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Moreover, the Veteran is in receipt of a total disability rating based upon individual unemployment (TDIU), which has contemplated the impact the Veteran's right eye disabilities have had on his employability. Specifically, the Veteran primarily reports right eye blindness, pain, discomfort, dryness, and disfigurement. As discussed above, the current ratings assigned are adequate to fully compensate the Veteran for his right eye complaints and symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A rating in excess of 40 percent for herpetic keratosis of the right eye is denied. An initial 30 percent, but no higher, for right eye disfigurement is warranted for the entire appeal period. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs