Citation Nr: 1726825	
Decision Date: 07/12/17    Archive Date: 07/20/17

DOCKET NO.  13-00 340	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to a rating in excess of 10 percent for keratitis with lattice retinal degeneration and blepharitis, status post bilateral blepharoplasty.


REPRESENTATION

Veteran represented by:	John P. Dorrity, Agent


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel 


INTRODUCTION

The Veteran had active service from September 1974 to April 1998.  In July 2014, he testified before the undersigned Veterans Law Judge at the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  A transcript of the hearing is of record.  


FINDING OF FACT

During the period on appeal, the Veteran's eye disorders have been manifested by bilateral corrected distance vision of 20/40 with symptoms of dryness, redness, and itchiness, and have not resulted in incapacitating episodes of two weeks or more during any twelve month period during the relevant time frame.


CONCLUSION OF LAW

For the entire appeal period, the criteria for a rating in excess of 10 percent for keratitis with lattice retinal degeneration and blepharitis, status post bilateral blepharoplasty have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.75, 4.76, 4.76a, 4.77, 4.78, 4.79, Diagnostic Code (DC) 6006-6001 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  

Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Where, as in this case, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  The Board has considered and found no need for the assignment of "staged" ratings for any part of the appeal period.

The Veteran is in receipt of a 10 percent rating for keratitis with lattice retinal degeneration and blepharitis, status post bilateral blepharoplasty under DC 6006-6001 (retinopathy or maculopathy and keratopathy).  He filed an increased rating claim that was received by VA in October 2010.  Eye disabilities are evaluated under DC 6000-6099.  Under General Rating Formula for DCs 6000 through 6009, eye disorders are rated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher rating.  

With respect to incapacitating episodes: a 10 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.  A 20 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months.  A 40 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months.  A 60 percent rating is warranted where the condition results in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Alternatively, these eye disorders are rated based on impairment of central visual acuity outlined in DCs 6061 to 6066.  The evaluation of visual impairment should be based on central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present.  38 C.F.R. § 4.76(b).  However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity.  

The Veteran contends generally that the eye disorders have manifested in more severe symptoms than contemplated by the 10 percent rating assigned.  He asserts that his eye disorder has deteriorated throughout the years as indicated by the documented treatment history and resultant cataracts/surgery in both eyes.  He maintains that the chronic dry eye disorder has worsened in subsequent years requiring the use of medication to control.    

After review of the lay and medical evidence of record, the weight of the evidence demonstrates that the Veteran's eye disorders are manifested by bilateral corrected distance vision of 20/40 with symptoms of dryness, redness, and itchiness, and have not resulted in incapacitating episodes of two weeks or more during any twelve month period during the relevant time frame, which is commensurate with the 10 percent rating assigned under DC 6006-6001.   

Specifically, an October 2009 private treatment record notes a right eye cataract, the eyes functioning well at 20/20 vision, and a well centered implant in the left eye.  A September 2014 private treatment record notes that the Veteran underwent a phacoemulsification with IOL (intraocular lens) implant (cataract surgery) in the right eye.   

At the February 2011 VA examination, the Veteran reported an ocular history of cataract surgery in the left eye four years prior.  He underwent Lasik surgery in both eyes in 1999 and a bilateral blepharoplasty in 1997.  He reported constant redness in both eyes as well as irritation.  The examination report notes that the Veteran is being treated for dry eye and takes Restasis twice a day in both eyes.  He was noted to have a small cataract in the right eye.  He reported that the vision is darker in the right eye compared to the left eye.  He reported being nearsighted prior to Lasik surgery, but only wearing reading glasses subsequent to surgery. 

Upon examination, corrected distance and near acuity was measured at 20/20 bilaterally.  Extraocular muscle movements were full bilaterally.  Confrontation visual fields were full to finger counting bilaterally.  Pupils were equal, round, and reactive to light without an afferent pupillary defect.  Slit-lamp examination revealed blepharitis, frothy tears, and thickened lid margins, bilaterally.  The examination report notes abnormalities of the conjunctiva (1+ injection in both eyes), superficial punctate keratitis on the corneas bilaterally, and mildly thick scars temporal and inferiorly bilaterally.  The anterior chamber of both eyes was noted to be deep and quiet with clear irises.  Examination of the lens showed nuclear sclerosis in the right eye and posterior chamber intraocular lens implant that was clear in the left eye.  Diagnoses of bilateral blepharitis, left eye pseudophakia, and bilateral status post Lasik were rendered. 

At the December 2015 VA examination, the Veteran reported right eye blur since the September 2014 cataract surgery and poor vision since service.  He had bilateral Lasik surgery and a blepharoplasty in 1999 as well as cataract surgery in the right eye in 2014 and in the left eye in 2008.  Following the left eye cataract surgery, he underwent a yag laser procedure to clear the posterior capsule.

Upon examination, corrected distance and near acuity was measured at 20/40 or better bilaterally.  The Veteran did not have a difference equal to two or more lines on the Snellen test type chart between distance and near corrected vision.  Pupils were equal, round, and reactive to light without an afferent pupillary defect.  No corneal irregularity resultant in severe irregular astigmatism or diplopia (double vision) was noted.  The lids/lashes, conjunctiva/sclera, cornea, anterior chamber, iris, and fundus were noted as normal bilaterally.  Posterior chamber intraocular lens implant with posterior capsular opacification was noted bilaterally.  He did not have a visual field defect in either eye.  The examiner noted that posterior capsular opacification in the right eye was contributing to a mild decrease in acuity.  The examination report notes no incapacitating episodes attributable to any eye disorder in the previous 12 months.

The Board has reviewed the statements from the Veteran made during the course of this appeal and to health professionals and, while they do paint a picture of the difficulty his eye disorders cause, these statements do not establish that a rating in excess of 10 percent is warranted.  The rating criteria are based on the frequency, severity, and duration of symptoms, and clinical measurement of visual acuity.  The evidence of record does not indicate that he has had incapacitating episodes having a total during of two weeks or more.  His corrected distance vision does not meet or more closely approximate the criteria for any compensable rating based on visual acuity.  Visual acuity was measured, at worse, at 20/40 bilaterally.  See 38 C.F.R. § 4.79, DC 6066 (noncompensable rating for corrected distance vision of 20/40 or better in both eyes).  

The Veteran does not have any of the conditions associated with DCs 6010 to 6026, 6029 to 6037, or 6061 to 6065.  He has no impairment of his visual fields (DC 6080), no scotoma (DC 6081), and no impairment of muscle function (DCs 6090, 6091).

The Veteran has undergone bilateral cataract surgery.  There is no indication in the record that the cataracts are associated with the service-connected eye disorders.  In any case, postoperative cataracts where a replacement lens is present (pseudophakia), as in this case, are rated based on visual impairment.  38 C.F.R. § 4.79, DC 6027.  As discussed, he does not meet the criteria for a compensable rating based on visual impairment.

While the record has consistently established that the Veteran has a diagnosed eye disorder for which he has been treated, the evidence of record does not show that the eye disorders warrant a higher rating under any of the diagnostic codes related to the eye.  Based on the above, a rating in excess of 10 percent for keratitis with lattice retinal degeneration and blepharitis, status post bilateral blepharoplasty is not warranted.

The Board has considered whether referral for an extraschedular evaluation would have been warranted for the eye disability for any part of the rating period.  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2016).  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular rating is, therefore, adequate, and no referral is required.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).    

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  While the Board recognizes the Veteran's difficulties caused by his eye disability, such disability is adequately contemplated in the applicable rating criteria during the period in question.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The schedular criteria are adequate to rate the Veteran's eye disability.  The schedular rating criteria provide for ratings based on visual acuity and incapacitating episodes.  The Veteran's complaints concern diminished visual acuity, which are the foundation of the schedule criteria.  The VA examination reports and private treatment records documented his visual acuity, other eye abnormalities (addressed in the rating schedule), and symptoms.  The objective findings, including the lack of incapacitating episodes, allowed evaluation under the rating schedule.  The Board has considered all of his symptoms in assigning a schedular rating and those symptoms are contemplated by the relevant schedular criteria.  In other words, he does not have any symptoms from the eye disability that are unusual or are different from those contemplated by the schedular rating criteria.

In view of the circumstances as a whole, the rating schedule is adequate, even in regard to the combined effect of the Veteran's service-connected disabilities.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

Further, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Veterans Claims Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal.  The Veteran has not contended that he is unemployed because of his service-connected disabilities, and the other evidence of record does not so suggest; thus, Rice is inapplicable in this case.

Finally, 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 


ORDER

A rating in excess of 10 percent for keratitis with lattice retinal degeneration and blepharitis, status post bilateral blepharoplasty is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs