Citation Nr: 1702389 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 12-16 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an evaluation in excess of 30 percent for status-post corneal transplant, right eye (OD), corneal scarring OD, macular degeneration OD and pseudophakia OD, on a substitute basis. ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from April 1951 to June 1953. He died in April 2014, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Before the Board promulgated a decision on the Veteran's appeal he died. In a decision in April 2014, the Board dismissed the appeal. Since then, in March 2016, the RO has substituted the Appellant for the Veteran. The Board is proceeding with the Appellant in the place of the Veteran. FINDING OF FACT The Veteran's service connected right eye disability, status-post corneal transplant, corneal scarring, macular degeneration, and pseudophakia, was manifested by visual acuity of no worse than 20/70 for the right eye and field of vision limited to no worse than to 35 degrees in the right eye; the left eye was not service connected. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for status-post corneal transplant, right eye (OD), corneal scarring OD, macular degeneration OD and pseudophakia OD, on a substitute basis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.79, Diagnostic Codes 6000-6080 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance 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 a December 2010 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 reports of December 2010 and July 2011 VA examinations. The examination reports reflect that the VA examiners 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 VA examination reports, taken together, are 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). II. 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 (2016). 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 (2016). 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 (2016). 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 (2016). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. III. Factual Background and Analysis The Veteran filed a claim for an increased rating that was received by VA in October 2010. The Veteran's status-post corneal transplant, right eye (OD), corneal scarring OD, macular degeneration OD and pseudophakia OD has been rated as 30 percent disabling throughout the period on appeal. He was initially granted service connection for his right eye disability by a December 1990 Board decision. A February 1991 rating decision assigned an initial 30 percent rating from May 1989. Service connection is not in effect for any disability of the left eye. The Veteran's right eye disability is currently rated under Diagnostic Codes (DC's) 6000-6070. DC 6036 pertains to status post corneal transplant. 38 C.F.R. § 4.79, DC 6036. Prior DC 6074 contemplated vision impairment of one eye of 5/200 with 20/40 vision in the other eye. 38 C.F.R. § 4.84a, DC 6074 (2008). The rating criteria used to evaluate disabilities of the eyes were amended as of December 10, 2008, for all claims filed on or after such date. As the Veteran's claim was filed in October 2010, and thus after December 10, 2008, only the current rating criteria apply in the present case, and therefore consideration of DC 6074, or any prior regulations, is not warranted. Diagnostic Code 6036 provides that status post corneal transplant is to be evaluated on visual impairment. See 38 C.F.R. § 4.79, Diagnostic Code 6036. Evidence A December 2010 statement from W.B., M.D. noted that on the Veteran's visit in August 2010 his visual acuity was count fingers in the left eye. A VA examination was conducted in December 2010. The Veteran reported distorted vision, redness, discharge, glare, floaters, sensitivity to light, watering and blurred vision. He had no pain, enlarged images, swelling or haloes. The eye symptoms were ongoing. The Veteran had not had any incapacitating episodes in the past 12 months due to his eye condition. The Veteran treated his eye condition with eye drops (timolol 0.5%). The Veteran reported he underwent corneal transplants of the right eye in January 1996 and again in June 2003. The Veteran reported that he could no longer see objects he drops on the floor; could not see to take medications unless they were sorted previously; could not read prescription bottles; could not read instructions on yard tools; and could not read without magnification. He would not touch a computer now and had to give up driving. On examination, the eye conditions were noted as: status post corneal transplant OD (right eye); corneal scarring OD; significant cataract OS (left eye); pseudophakia OD; and macular degeneration, dry OU (both eyes). There was scarring located at 360 and it measured 3mm peripherally. There was no pterygium. The measurement of intraocular pressure of left eye was 16 mm Hg, which was within normal limits. The measurement of intraocular pressure of the right eye was 14 mm Hg, which was within normal limits. There was no evidence of glaucoma. The examination of the optic nerves was normal. Examination of the vessels was normal. Examination of the macula was abnormal, Drusen, in both eyes. The lens examination was abnormal, with pseudophakia, right eye, and 4+ nuclear sclerosis of both eyes. The visual acuity examination revealed uncorrected distance vision on the right as 20/100-. The corrected distance vision on the right was 20/30. The uncorrected near vision on the right was 20/400. The corrected near vision on the right was 20/30. The uncorrected distance vision on the left was CF (count fingers) 2 feet. The corrected distance vision on the left was CF 2 ft. The uncorrected near vision on the left was CF 2 ft. The corrected near vision on the left was CF 2 ft. 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 Veteran's best corrected distance vision was worse than 5/200 in the left eye. Using the left eye only, he was unable to read the largest line on the Snellen Chart but he could count fingers at 2 feet. There was no diplopia. The confrontation test was normal. The Goldmann Kinetic Perimetry device was used to test the visual field. The III/4e test object was used in the Perimeter study. Additional testing was not required to evaluate the visual fields. There was no enucleation and no nystagmus. A lens had been removed and an intraocular replacement was present. There was no chronic conjunctivitis. The slit lamp examination was normal. On VA examination in July 2011, the examiner noted that the Veteran no longer drove, had to use a magnifying glass when reading, and had severe dementia. The examiner noted corneal scarring in the right eye secondary to Herpes Simplex Keratitis that resulted in corneal transplant. Keratoconus was not present. There was scarring located at corneal periphery of the right eye measuring one millimeter. There was no pterygium. The measurement of intraocular pressure of the left eye was 9 mm Hg, which was within normal limits. The measurement of intraocular pressure of the right eye was 11 mm Hg, which was within normal limits. There was no evidence of glaucoma. The examination of the optic nerves was normal. Examination of the vessels was normal. Examination of the macula was abnormal, showing dry macular degeneration in both eyes. The lens examination was abnormal, with cataract in the left eye and pseudophakia in the right eye. The visual acuity examination revealed uncorrected distance vision on the right as 20/60. The corrected distance vision on the right was 20/60. The uncorrected near vision on the right was 20/400. The corrected near vision on the right was 20/80. The uncorrected distance vision on the left was Hand Motion. The corrected distance vision on the left was Hand Motion. The uncorrected near vision on the left was Hand Motion. The corrected near vision on the left was Hand Motion. In comparing the near and distance corrected vision, there was a difference equal to two or more scheduled steps or lines of visual acuity, with the near vision being worse, for the right eye. As requested the additional readings were: right eye distance corrected 20/60 and right eye near corrected 20/80. There was a significant cataract in the left eye. The Veteran's best corrected distance vision was worse than 5/200 in the left eye. Using the left eye only, he was unable to read the largest line on the Snellen Chart or count fingers but he could detect hand motion at 2 feet. The Veteran's vision was not normal. The lens required to correct distance vision in the poorer eye differed by more than 3 diopters from the lens required to correct distance vision in the better eye. The reason for the difference was a corneal transplant in the right eye causing refractive difference between both eyes. The eye examination did not reveal diplopia. The confrontation test was abnormal. The Humphreys with simulated kinetic Goldmann testing capability was used to test the visual field. The III/4e test object was used in the Perimeter study. Additional testing was not required to evaluate the visual fields. There was no enucleation. There was no nystagmus. In examining the lenses, a lens had been removed and an intraocular replacement was present. The examination did not reveal chronic conjunctivitis. Slit lamp examination revealed corneal transplant in the right eye and a cataract in the left eye. The examiner noted that dry macular degeneration and cataract were the cause of hand motion vision in the left eye. Visual fields testing for the right eye showed an average contraction to 35 degrees. based on the following examination findings: A normal field of vision temporally is 85 degrees; the examination showed 44 degrees. Normal vision down temporally is 85 degrees; examination showed 56 degrees. Normal field of vision down is 65 degrees; examination showed 30 degrees. Down nasally, 50 degrees is normal; examination showed 35 degrees. Normal vision nasally is 60 degrees; examination showed 38 degrees. Up nasally, 55 degrees is normal; examination showed 30 degrees. Normal field of vision up is 45 degrees; examination showed 20 degrees. Up temporally, 55 degrees is normal; examination showed 30 degrees. The total remaining visual field for the right eye was 283 degrees. When this number is divided by the eight directions, rounded up, the average contraction is obtained. The right eye can be rated on its concentric contraction or based on an equivalent visual acuity of 20/70. Analysis A rating higher than 30 percent is not warranted based on visual impairment. In this regard, when visual impairment in only one eye is service-connected, as is the case here, the visual acuity of the other eye will be considered to be 20/40 for the purposes of evaluating the service-connected visual impairment, subject to the provisions of 38 C.F.R. § 3.383 (a) (2016) (pertaining to special consideration for paired organs and extremities, which is discussed below). 38 C.F.R. § 4.75 (c). The maximum evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75(d). Impairment of visual acuity is determined based on the best distant vision obtainable. 38 C.F.R. § 4.76 (b). The evidence of record, including the VA examination reports, shows that the Veteran does not have anatomical loss of the right eye. The evidence also shows that the Veteran's right eye has some loss of field vision. Generally, impairment of central visual acuity and impairment of visual field will be rated separately and combined under 38 C.F.R. § 4.25 (2016). 38 C.F.R. § 4.77 (c) (2016). However, because the Veteran's right eye is already assigned a maximum 30 percent rating for visual impairment, a separate rating based on field vision loss would not afford a basis for a higher evaluation in this case. See 38 C.F.R. § 4.75 (d). The Board also notes that in keeping with this provision, a rating in excess of 30 percent is not available based on service-connected loss of field vision in one eye only. See 38 C.F.R. § 4.79, DC's 6080-6081. Thus, to rate the right eye based on loss of field vision would not yield a higher rating. Accordingly, a rating greater than 30 percent is not available under the rating criteria for the Veteran's service-connected right eye vision impairment. The Veteran's visual impairment is not severe enough to qualify for special consideration for paired organs and extremities under 38 C.F.R. § 3.383 (a). Specifically, under § 3.383(a), compensation is payable for the combinations of service-connected and nonservice-connected disabilities, as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the Veteran's own willful misconduct. With respect to the eyes, special consideration applies when there is impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of nonservice-connected disability, and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. 38 C.F.R. § 3.383 (a)(1). As the Veteran's right eye visual impairment is no worse than 20/70 in terms of central visual acuity, and does not have peripheral field vision of 20 degrees or less, as shown in the July 2011 VA examination report, the criteria for special consideration are not satisfied. See id. The Board recognizes that the Veteran has multiple service-connected pathology of the right eye, as described above, including status-post corneal transplant, corneal scarring, macular degeneration, and pseudophakia. However, by the express terms of the rating schedule, these conditions are all rated based on visual impairment when such forms the basis of the higher evaluation (as compared to an evaluation based on other criteria associated with these codes), and may not be assigned separate ratings based both on visual impairment and other criteria specific to those codes. Cf. 38 C.F.R. § 4.75 (d) (providing, in pertinent part, that the evaluation for visual impairment may be combined with evaluations for other disabilities of the same eye that are not based on visual impairment) (emphasis added); Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (holding that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise). The Board also notes that the rule against pyramiding prohibits the evaluation of the same disability under various diagnoses. 38 C.F.R. § 4.14 (2016). In sum, the criteria for a rating higher than 30 percent for the Veteran's right eye pathology have not been satisfied. With regard to staged ratings, although there may have been some fluctuations in severity of the Veteran's right eye disability over the course of this appeal, the preponderance of the evidence shows that it has not met or approximated the criteria for a higher rating at any point during pendency of this claim, for the reasons explained above. Thus, staged ratings are not warranted for the time period under review. See Hart, 21 Vet. App. at 509-10. As there is no evidence or assertion of unemployability related to the Veteran's right eye disability during the pendency of this appeal, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised. See 38 C.F.R. §§ 3.340, 4.16 (2014); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The evaluation of the Veteran's right eye disability does not warrant referral for extraschedular consideration. See 38 C.F.R. § 3.321 (b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this regard, because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents 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. Id. 38 C.F.R. § 3.321 (b)(1). These criteria have been broken up into a three-step inquiry, each element of which must be satisfied: (1) The criteria must be inadequate to describe the claimant's disability level and symptomatology; (2) There must be related factors such marked interference with employment or frequent periods of hospitalization; (3) If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 114 . Here, a comparison of the Veteran's right eye disability with the schedular criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321 (b). His right eye disability comprised multiple pathology and was manifested by vision loss. These diagnoses and manifestations are specifically contemplated by the General Rating Formula. See 38 C.F.R. § 4.79. The rating criteria applicable to eye disabilities are generally not cast in terms of symptoms or functional impairment. However, they are necessarily designed with a view toward compensating for disability associated with symptoms and functional impairment resulting from the pathology they address. In this regard, all schedular criteria are meant to take into account the average impairment in earning capacity resulting from service-connected disabilities. See 38 C.F.R. § 4.1. The basis of disability evaluations is one's ability to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10; see also 38 C.F.R. § 4.21 (2014) ("[c]oordination of rating with impairment of function will . . . be expected in all instances"). Viewed in this light, although a particular diagnostic code may provide for evaluations of a disability solely in terms of objective clinical data or the presence of a given diagnosis, the purpose of the rating criteria is necessarily to provide compensation for the associated symptoms and functional impairment in terms of the resultant disability, particularly with regard to the impact on earning capacity. See 38 C.F.R. §§ 4.1 , 4.10, 4.21. The criteria applicable to visual impairment do not describe the types of difficulties or limitations that might be caused by such impairment. The fact that no specific symptoms or limitations are described indicates that they are simply assumed and built into the graded levels of evaluation that can be assigned under the rating schedule. Accordingly, the mere fact that a given symptom or type of functional impairment is not discussed in the rating criteria cannot be a basis in itself for a finding that the schedular criteria are inadequate. Rather, there must be evidence that the symptom or functional impairment in question is so severe or unusual that the criteria do not adequately contemplate it. Any resulting visual loss is already compensated by the rating criteria, as discussed above. The Veteran did not have any other pathology, and did not report any other symptoms, other than what has already been discussed. In short, there are no manifestations of the Veteran's right eye disability not accounted for in evaluating it under the schedular criteria. See Thun, 22 Vet. App. at 115; 38 C.F.R. § 3.321 (b). Thus, the available schedular evaluation is adequate to rate this disability, and the first step of the inquiry is not satisfied. See id. In the absence of this threshold finding, the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, is moot. See Thun at 118-19. Alternatively, such factors have not been alleged or shown. Therefore, the Board will not refer the evaluation of the Veteran's right eye disability for extraschedular consideration. See id.; 38 C.F.R. § 3.321 (b). Accordingly, the preponderance of the evidence is against the claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to higher or separate ratings for the Veteran's right eye disability, on a substitute basis, is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an increased rating for status-post corneal transplant, right eye (OD), corneal scarring OD, macular degeneration OD and pseudophakia OD, currently evaluated as 30 percent disabling, on a substitute basis, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs