Citation Nr: 1410193 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-11 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a compensable rating for bilateral keratoconus. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2002 to October 2006. This appeal to the Board of Veterans' Appeals (Board) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims, which has been reviewed and considered. FINDING OF FACT The Veteran's corrected vision is 20/40 or better, bilaterally. CONCLUSION OF LAW The criteria for a compensable evaluation for the Veteran's bilateral keratoconus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.22, 4.76, 4.79, Diagnostic Code (DC) 6035 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duties to notify and assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence VA will attempt to obtain. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the veteran. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in an April 2010 letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for an increased rating for bilateral keratoconus, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or submit any further evidence in his possession that pertains to the claim. The same letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. This notice was timely as the issue of entitlement to an increased rating for bilateral keratoconus was not adjudicated until June 2010. The record also reflects that VA has complied with the duty to assist the Veteran in the development of his claim. Specifically, VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The information and evidence that have been associated with the claims file include: the Veteran's service treatment records (STRs), VA treatment records, lay statements from the Veteran and multiple VA examination reports. The Veteran was afforded a VA vision examination in May 2010 and July 2012. The examination reports reflect that thorough testing of the Veteran's bilateral vision was conducted and the results were sufficiently reported to allow for evaluation of the Veteran's service-connected vision disability. As such, the Board finds the examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In summary, the Board finds that VA complied with its duties to notify and assist and that the Veteran will not be prejudiced by the Board adjudicating his claim on the merits at this time. Increased Rating Claim 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. Separate Diagnostic Codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Keratoconus, rated under DC 6035, is to be evaluated based on the impairment of visual acuity. A 10 percent disability rating is warranted for visual acuity where the vision is 20/50 in one eye and 20/50 in the other eye; or where vision is 20/40 in one eye and 20/50 in the other; or where vision is 20/70 in one and 20/40 in the other; or where vision is 20/100 in one eye and 20/40 in the other. 38 C.F.R. § 4.79, Diagnostic Code 6035 (2013). Central visual acuity should be evaluated on the basis of corrected distance vision. 38 C.F.R. § 4.76. At the May 2010 VA examination, the Veteran's corrected distance and near visual acuity was 20/30 and 20/20, respectively. The examiner noted that the Veteran's corneal irregularity resulted in severe and irregular astigmatism. Similarly, at his July 2012 examination, the Veteran's corrected distance vision was 20/40 or better, bilaterally. The VA examiner also found a corneal irregularity which results in severe irregular astigmatism. A VA optometry treatment note from August 2012 shows the Veteran's corrected visual acuity was 20/25 and 20/20 for the right and left eye, respectively. Initially the Board notes that VA regulations provide that in the case of a corneal disorder that results in severe irregular astigmatism that can be improved more by contact lenses than by glasses, visual acuity should be measured when wearing contact lenses, if the Veteran customarily wears contact lenses. 38 C.F.R. 4.76 (b)(2). However, in this case, both VA examiners noted that the Veteran does not wear contact lenses, only glasses, as he could not get used to contacts. In this case, the Veteran's keratoconus is properly rated as noncompensable because at no time during the appeal period was the Veteran's vision more impaired than 20/40 in either eye, thus warranting a noncompensable rating. The Veteran's keratoconus disability does not warrant a 10 percent rating or higher because his vision is not 20/50 or worse in at least one eye. The Veteran contends that he should be rated as 30 percent disabling because he has been prescribed contact lenses. However, as explained by the RO, the regulation that provided a 30 percent rating for medically-necessary contact lenses was revised in 2008. The Veteran did not file his current claim for an increase until 2009; therefore, the prior regulations do not apply in this case. Moreover, the Board notes that the record shows that, although the Veteran was provided with contact lenses, he actually wears glasses because he could not get used to wearing contact lenses. The Board has considered other DCs regarding vision impairment under 38 C.F.R. § 4.79. No other ocular diseases, however, were found on examination, and Diagnostic Code 6035 is for rating keratoconus, which is the Veteran's current diagnosis. For this reason, the Board finds that DC 6035 is the most appropriate DC to use to rate the Veteran's disability. Also, the Board finds that no other applicable code would provide for a compensable rating given the Veteran's corrected vision of 20/40 or better, bilaterally. Ordinarily, the VA Rating 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. 38 C.F.R. § 3.321(b)(1) (2013). 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 eye disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's eye disability with the established criteria shows that the schedular rating criteria reasonably describe the Veteran's level of disability. Specifically, the VA examination reports show that the Veteran's corrected vision is to 20/40 or better, bilaterally. Such impairment is directly contemplated by the noncompensable schedular rating assigned above. Thus, the Board finds that the schedular evaluation is not inadequate. Additionally, even if the schedular criteria were not adequate, this case does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The evidence of record does now show that the keratoconus results in excessive hospitalizations or marked interference with employment. In light of the foregoing, the Board finds this case does not reveal an exceptional or unusual disability picture so as to warrant a referral for extraschedular consideration. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record. In this case, the Veteran was granted TDIU in a May 2013 rating decision, effective February 17, 2012. In Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011), the Court distinguished the instant case from Rice and recognized VA can specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU. The Court in Locklear held that "[b]ifurcation of a claim generally is within the Secretary's discretion." Id. Here, the record reflects that the Veteran did not file a Notice of Disagreement with respect to the effective date of the grant of TDIU. Given the foregoing, the Board concludes that the TDIU rating claim was separately adjudicated and has not been perfected for appellate review. Accordingly, the Board does not have jurisdiction over the claim and need not refer or remand the matter. ORDER Entitlement to a compensable rating for bilateral keratoconus is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs