Citation Nr: 1628301 Decision Date: 07/15/16 Archive Date: 07/28/16 DOCKET NO. 12-04 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 30 percent for keratoconus of the left eye. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active duty from October 1984 to October 1987 and from January 1991 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which, in part, continued a 30 percent rating for keratoconus of the left eye. The issue of entitlement to VA vocational rehabilitation has been raised by the record in a December 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT The Veteran's keratoconus disability is manifested by visual acuity of no worse than 20/25 corrected distance vision in the right eye and worse than 5/200 corrected distance vision in the left eye. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for keratoconus of the left eye are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Codes 6035, 6064, 6065 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The RO provided notice to the Veteran in an April 2011 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of private, service, and VA treatment records. The record also contains the report of an April 2011 VA examination. The April 2011 VA examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the April 2011 VA examination report is sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran. Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2015). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2015). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms he is experiencing in his left eye. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. Factual Background and Analysis The Veteran filed a claim for an increased rating that was received by VA in February 2011. The Veteran's keratoconus of the left eye has been rated as 30 percent disabling throughout the period on appeal under Diagnostic Code 6035-6077. 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. Keratoconus is a noninflammatory bilateral protrusion of the cornea, the apex being displaced downward and nasally. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 410, 980 (32d. ed. 2012). Under Diagnostic Code 6077 pursuant prior to the December 10, 2008 amendments pertaining to the regulation of eye disabilities, a 30 percent rating was warranted for vision in one eye that is 10/200 and vision in the other eye that is 20/40. 38 C.F.R. § 4.84a, Diagnostic Code 6077 (2008). As the Veteran filed his claim in February 2011, after the regulation change in 2008, he will be rated based on the revised criteria. Diagnostic Code 6035 provides that keratoconus is to be evaluated on impairment of visual acuity. See 38 C.F.R. § 4.79, Diagnostic Code 6035. Impairment of visual acuity is determined on the basis of corrected distant vision. 38 C.F.R. § 4.76(b). The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.79. Impairment of central visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. § 4.79, Diagnostic Codes 6061 to 6066 (2015). Diagnostic Code 6064 provides a minimum 30 percent rating for no more than light perception in one eye and 20/40 corrected distance vision in the other eye. A 40 percent rating is warranted for 20/50 corrected distance vision in the other eye, a 50 percent rating for 20/70 corrected distance vision in the other eye, a 60 percent rating for 20/100 corrected distance vision in the other eye, a 70 percent rating for 20/200 corrected distance vision in the other eye, a 80 percent rating for 15/200 corrected distance vision in the other eye, a 90 percent rating for corrected distance 10/200 vision in the other eye, and a total evaluation for 5/200 corrected distance vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6064. Diagnostic Code 6065 provides a 30 percent rating where there is 5/200 corrected distance vision in one eye and 20/40 corrected distance vision in the other eye. A 40 percent rating is warranted where there is 5/200 corrected distance vision in one eye and 20/50 corrected distance vision in the other eye. A 50 percent rating is warranted where there is 5/200 corrected distance vision in one eye and 20/70 corrected distance vision in the other eye. A 60 percent rating is warranted for 5/200 corrected distance vision in one eye and 20/100 corrected distance vision in the other eye. A 70 percent rating is warranted for 5/200 corrected distance vision in one eye and 20/200 corrected distance vision in the other eye. An 80 percent rating is warranted for 5/200 corrected distance vision in one eye and 15/200 corrected distance vision in the other eye. A 90 percent rating is warranted for 5/200 corrected distance vision in one eye and 10/200 corrected distance vision in the other eye. Finally, a 100 percent rating is warranted for 5/200 corrected distance vision in both eyes. 38 C.F.R. § 4.79 , Diagnostic Code 6065. The Veteran underwent a VA examination in April 2011. The Veteran reported being diagnosed with keratoconus of the left eye since 1986. His left eye symptoms included glare, halos, sensitivity to light, distorted vision, watering and blurred vision. He had no pain, distorted vision, enlarged images, redness, swelling, discharge or floaters. He did not have a history of diabetes and did not have any incapacitating episodes in the past 12 months due to his eye condition. The treatment included specialty contact lenses but the attempts were unsuccessful. The Veteran reported that there was no continuous treatment. The examiner noted that the Veteran received Intacs in April 2010. The residuals of this surgery were described as light sensitivity. The Veteran reported that he was unable to drive at night and was also unable to pursue a career in law enforcement. The eye examination revealed inferior steepening of the left cornea. There was pathology in regards to the cornea located at the inferior cornea and it measured 3mm. Keratoconus was present and contact lenses were not required. Adequate correction was not possible. The examination did not reveal any scarring or a pterygium. The measurement of intraocular pressure of the left eye and right eye was within normal limits. There was no evidence of glaucoma. The examinations of the optic nerves and vessels were normal. The examinations of the maculas and lenses were normal. Visual acuity examination revealed uncorrected distance vision on the right as 20/40. The corrected vision distance on the right was 20/25. The uncorrected near vision on the right was 20/50. The corrected near vision on the right was 20/30. The uncorrected vision distance on the left was count fingers (CF) 2 feet. The corrected vision distance on the left was CF 2 feet. The uncorrected near vision on the left was CF 2 feet. The corrected near vision on the left was CF 2 feet. In comparing the near and distance corrected vision, there was no difference equal to two or more scheduled steps or lines of visual acuity, with the near vision being worse. The examiner noted that the Veteran's best corrected distance vision was worse than 5/200 in the left eye. Using his left eye only, he was unable to read the largest line on the Shellen Chart but could count fingers at 2 feet. The Veteran's vision was not normal. The lens required to correct distance vision in the better eye did not differ by more than 3 diopters from the lens required to correct distance vision in the better eye. The eye examination did not reveal diplopia. The confrontation test was normal. There was no enucleation and no nystagmus. Examination revealed that both lenses were intact. The examination did not reveal chronic conjunctivitis. A slit lamp examination revealed that Intacs were inserted in the left cornea. The diagnosis was active keratoconus of the left eye. The subjective factors were blurred vision and the objective factors were steeping of the cornea. There were no findings of cataracts or retinopathy on the examination. The examiner indicated that the Veteran's left eye disability impacted his occupation as he could not pursue a career in law enforcement. Regarding the impact on daily activities, he could not drive at night. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for keratoconus of the left eye. As noted above, Diagnostic Code 6035 provides that keratoconus is to be evaluated on impairment of visual acuity. See 38 C.F.R. § 4.79, Diagnostic Code 6035. On VA examination in April 2011, the VA examiner indicated that the Veteran's best corrected distance vision was worse than 5/200 in the left eye. As noted above, Diagnostic Code 6064 provides the rating criteria for when there is no more than light perception in one eye while Diagnostic Code 6065 provides the rating criteria when there is 5/200 corrected distance vision in one eye. Regardless, for a rating in excess of 30 percent evaluation under both Diagnostic Code 6064 and Diagnostic Code 6065, the Veteran must demonstrate 20/50 corrected distance vision in the other eye. Simply put, based upon the evidence of record, a these corrected distance visions in the right eye have not been demonstrated. Here, while the Veteran's corrected vision in his left eye has been found to be worse than 5/200, there is no evidence that corrected distance vision in his right eye has been measured as 20/50, which is required for a rating in excess of 30 percent under Diagnostic Codes 6064 and 6065. Accordingly, as corrected distance vision in his right eye measured as 20/50 has not been demonstrated, his keratoconus of the left eye symptoms are best contemplated by the current 30 percent evaluation when applying the criteria set forth at 38 C.F.R. § 4.79 for impairment of central visual acuity. Thus, the weight of the evidence is against the grant of a disability rating in excess of 30 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2015). For all the foregoing reasons, the Board finds that the claim for a rating in excess of 30 percent for a keratoconus of the left eye disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected keratoconus of the left eye disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). 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 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 period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2015). 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 first 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant'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. The Veteran has indicated that he cannot take jobs that require him to work at night because he cannot drive at night. As reflected above, disabilities of the eye are rated based on impairment of visual acuity, impairment of visual fields, or incapacitating episodes. Impairment of visual acuity and visual fields are based on objective testing. It was not indicated that the Veteran had any incapacitating episodes due to his service-connected disability. The assigned 30 percent rating contemplates that the Veteran will have impairment in his earning capacity due to his service-connected disability, which includes limitations on his ability to drive at night. There is no evidence of record of an exceptional or unusual clinical picture not already contemplated by the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 6350. Accordingly, as the evidence does not demonstrate that the Veteran's keratoconus of the left eye disability is productive of an exceptional disability picture that is not contemplated by the schedular rating criteria, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER Entitlement to a rating in excess of 30 percent for keratoconus of the left eye is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs