Citation Nr: 1735167 Decision Date: 08/24/17 Archive Date: 09/06/17 DOCKET NO. 14-39 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating greater than noncompensable for residuals of a left eye injury. 2. Entitlement to a separate initial compensable rating for a corneal scar, including based on disfigurement. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1993 to February 1996, from September 1996 to August 2000, and from September 2007 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah which in pertinent part, granted service connection for residuals of a left eye injury (characterized as left eye cataract), evaluated noncompensable (0 percent), effective September 19, 2010. In February 2011, the Veteran submitted a written statement describing the severity of his left eye disability and requested an increased rating. For purposes of this appeal, the Board liberally construes the Veteran's February 2011 statement as a timely filed notice of disagreement (NOD), contesting the initial rating assigned for the left eye disability. 38 C.F.R. § 20.201 (2010, 2011). In an August 2013 rating decision, the RO (in San Diego, California) granted separate service connection for a left eye corneal scar (as a residual of an in-service left eye injury), evaluated noncompensable, effective February 24, 2012, and also continued the noncompensable rating for left eye cataract. In June 2014, the Veteran continued to express his disagreement with the level of rating assigned for his residuals of a left eye injury (albeit characterized as left eye corneal scar or as left eye cataract), which the Board finds as an intent on the part of the Veteran to continue with the prosecution of his appeal of the initial rating for his service-connected left eye disability. In October 2014, the RO furnished the Veteran a statement of the case (SOC). In November 2014, the Veteran filed his substantive appeal (VA Form 9). This case is currently under the jurisdiction of the RO in Oakland, California. In November 2015, the Board remanded further development. In the November 2015 decision, the Board re-characterized the issues as they are reflected on the cover page in order to allow consideration of whether separate disability ratings may be assigned for distinct disabilities resulting from the same injury that are not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The case is again before the Board for appellate review. The record in this matter consists solely of electronic claims files and has been reviewed. New and relevant documentary evidence has not been added to the record since the March 2017 Supplemental Statement of the Case (SSOC). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's residuals of a left eye injury are not manifested by incapacitating episodes and central visual acuity is not worse than 20/200 in the left eye. 2. The Veteran's corneal scar in the left eye has not been manifested by any characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for a compensable rating of 20 percent, but no higher, under hyphenated Diagnostic Codes 6027-6066, based on visual impairment, as a residual of a left eye injury have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.3, 4.7, 4.21, 4.75, 4.76(a), 4.77, 4.79 Diagnostic Codes (DC) 6027-6066 (2016). 2. The criteria for a compensable disability rating for a corneal scar of the left eye under Diagnostic Code 7800 based on disfigurement, as a residual of a left eye injury are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7800 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Regarding the Veteran's claim for a compensable rating for his residuals of a left eye injury, to include a separate compensable rating for corneal scars, service connection has been granted and the initial rating has been assigned. The claim of service connection has been more than substantiated; the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for increased ratings. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and relevant post-service treatment records and providing an examination when necessary. 38 U.S.C.A § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. The Veteran has been medically evaluated in conjunction with his residuals of a left eye injury disability claim and all identified and available relevant treatment records have been secured. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria The Veteran seeks an initial compensable rating for his residuals of a left eye injury, to include whether a separate initial compensable rating is warranted under hyphenated Diagnostic Codes 6027-6066 based on visual impairment, and under Diagnostic Code 7800 based on disfigurement due to a corneal scar. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. §1155; 38 C.F.R. §4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. When an already established service-connected disability is being evaluated, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). Under DC 6027, preoperative cataracts and postoperative cataracts with a replacement lens (pseudophakia) are evaluated based on visual impairment; postoperative cataracts without a replacement lens are evaluated based on aphakia. 38 C.F.R. § 4.79, DC 6027. Evaluation of visual impairment is to be rated based on the consideration of three factors: (1) impairment of visual acuity (excluding developmental errors of refraction), (2) visual fields, and (3) eye muscle function. 38 C.F.R. § 4.75. However, examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Impairment of visual acuity is determined based on the best distant vision obtainable (or impairment of visual fields). 38 C.F.R. § 4.76(a)(b). A 0 percent rating is assigned when vision is no less than 20/50 in each eye. 38 C.F.R. 4.79. If a Veteran (as here) is service-connected for visual impairment in only one eye, subject to the provisions of 38 C.F.R. § 3.383(a), the visual acuity of the nonservice-connected eye will be considered to be 20/40 for purpose of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Burn scars of the head, face or neck; scars of the head, face or neck due to other causes; or other disfigurement of the head, face, or neck with one characteristic of disfigurement warrants a 10 percent disability evaluation. 38 C.F.R. § 4.118, DC 7800. Burn scars of the head, face or neck; scars of the head, face or neck due to other causes; or other disfigurement of the head, face, or neck with 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, warrant a 30 percent disability evaluation. Id. Burn scars of the head, face or neck; scars of the head, face or neck due to other causes; or other disfigurement of the head, face, or neck with 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, warrant a 50 percent disability evaluation. Id. Burn scars of the head, face or neck; scars of the head, face or neck due to other causes; or other disfigurement of the head, face, or neck with 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, warrant an 80 percent disability evaluation. Id. The 8 characteristics of disfigurement include: 1) scar 5 or more inches (13 or more cm.) in length, 2) scar at least one-quarter inch (0.6 cm.) wide at widest part, 3) surface contour of scar elevated or depressed on palpation, 4) scar adherent to underlying tissue, 5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), 6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), 7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and 8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7800, Note 1. Factual Background The Veteran's service treatment records show an eye examination in April 2010 which show the Veteran's distant vision to be 20/200 for his left eye. The Veteran's post-service treatment records include a private eye examination conducted in December 2010. The private doctor diagnosed the Veteran with anterior cortical cataract. The Veteran's distant vision was found to be 20/80. The doctor noted blurred vision in the left eye, itching and burning with discharge, soreness of the left eye, glaucoma, inflammation, and a scar in the left eye due to his injury in service. In August 2013, the Veteran was provided with a VA examination to determine the severity of his eye condition. The VA examiner found diagnoses of a corneal scar in the left eye not affecting vision, cataract in the left eye, and allergic conjunctivitis. The Veteran's uncorrected distance vision was 20/100. His pupils were round and reactive to light, there was no anatomical loss or blindness in either eye, no astigmatism, and no diplopia was found. A vertical linear and small circular scar was found in the left cornea, as well as cortical haze. The examiner noted no visual field defects. The examiner did not find keratoconus, pterygium, or any other corneal condition. No decrease in visual acuity or impairment due to a corneal condition was noted. No scarring or disfigurement from a corneal condition was also noted. The examiner indicated a preoperative cataract in the left eye, but no aphakia or dislocation of the crystalline lens. No scarring or disfigurement attributable to any eye condition was noted. Additionally, no incapacitating episodes in the past 12 months were found. No functional impact on the Veteran's ability to work due to his eye condition was noted by the examiner. In August 2015, the Veteran was given an eye examination by another private physician. The doctor noted the Veteran's history of blunt trauma to his left eye that caused iris damage. She suspected old angle recession with deepened left angle. The Veteran's vision in his left eye was found to be 20/200. The Veteran was most recently provided with a VA examination for his eye conditions in November 2015. The VA examiner found diagnoses of corneal opacities, cataract, and anterior uveitis in the left eye. The Veteran's uncorrected distance vision was 20/100. His pupils were round and reactive to light, there was no anatomical loss or blindness in either eye, no astigmatism, and no diplopia was found. The examiner noted scars on the left cornea measuring 2.8 mm, 2.5 mm, and one circular scar above the pupil at 1mm. The examiner noted no visual field defects. The examiner did not find keratoconus, pterygium, or any other corneal condition. The examiner indicated a preoperative cataract in the left eye, but no aphakia or dislocation of the crystalline lens. No scarring or disfigurement attributable to any eye condition was noted. Additionally, no incapacitating episodes in the past 12 months were found. No functional impact on the Veteran's ability to work due to his eye condition was also noted by the examiner. Regarding the corneal scars, the examiner commented that they were only visible with the bio microscope. He stated that the corneal scars were outside the visual axis so they do not affect vision, the scars cause no elevation or depression of the cornea and there is only a minimal opacity of the cornea. There was no tissue loss, no adherence of the scar to underlying tissue, and no distortion or asymmetry of the eyes. The corneal scars were not found to be painful, and since the Veteran has good vision with glasses, no impact on his vision or ability to function was noted. Regarding the diagnosis of anterior uveitis, the examiner noted that the Veteran's complaints of blurry vision, red eye, and floaters are consistent with anterior uveitis and not his corneal scars. The Veteran's corneal scars were found to be static and will not fluctuate over time. No active uveitis was found, so there is no functional limitation or impairment of his eye or vision. Based on his vision alone, the examiner noted that the Veteran should be able to maintain gainful employment. The examiner concluded that it is at least as likely as not that the Veteran's trauma to his left eye could have contributed to his anterior uveitis, but no active uveitis was found on examination. In August 2016, the November 2015 VA examiner provided an addendum opinion regarding the Veteran's eye conditions. The Veteran's small cataract was noted not to have an impact on his vision currently. The VA examiner added that it is at least as likely as not that this was caused by his trauma to the left eye. Regarding the corneal opacities of the left eye, the Veteran was found to have 3 small corneal scars that do not affect his vision. The scars were noted to only be visible with a bio microscope, and because they are outside the visual axis, they do not affect vision. The scars cause no elevation or depression of the cornea and there is only a minimal opacity of the cornea. There is no tissue loss, and there is no adherence of the scar to the underlying tissue. The examiner added that since the scars are only visible with the bio microscope there is no distortion or asymmetry of the eyes. The corneal scars were not found to be painful and because the Veteran was found to have good vision with glasses, there is no impact on his vision or ability to function. Since he is 20/20 with glasses, the examiner opined that he would be able to pass a California DMV vision exam for his license and thus be able to drive. Also, the examiner noted that the Veteran is able to read normal sized print whether it is printed or on a computer, thus he should be able to maintain gainful employment. Regarding the diagnosis of anterior uveitis in the left eye, the examiner noted that the Veteran's complaints of prolonged blurry vision, cloudy and bubbly peripheral vision, red eye, floaters, and flashes are consistent with his anterior uveitis and not his corneal scars. The Veteran's corneal scars were noted to be static and not change over time, but it was noted that the anterior uveitis is something that can fluctuate over time, even though there was no active uveitis in November 2015 VA examination. The examiner noted that the Veteran had normal peripheral vision on this visit, and as long as he has no active uveitis he will have no functional limitation or impairment of his eye or vision. The examiner added that since no cause was found on his work up for anterior uveitis it would be mere speculation to say if it is likely for his anterior uveitis to return along with his trouble of prolonged blurry vision, cloudy and bubbly peripheral vision, red eye, floaters and flashes. The examiner concluded that it is at least as likely as not that the Veteran's trauma to his left eye could have contributed to his anterior uveitis. Increased Rating for Residuals of Left Eye Injury After a review of the evidence of record, the Board finds that an initial rating of 20 percent is warranted for residuals of a left eye injury, effective September 19, 2010. As the Veteran has been found to have pre-operative cataract in his left eye, the disability must be evaluated based on visual impairment. 38 C.F.R. § 4.79, DC 6027. Before his separation from service, the Veteran's eye examination in April 2010 indicated uncorrected distance vision to be 20/200 for his left eye, which would warrant a 20 percent evaluation under DC 6066. The Veteran's private eye examination from December 2010 had the uncorrected distance vision to be 20/80 in his left eye, and his August 2013 VA examination indicated uncorrected distance vision at 20/100, both warranting a 10 percent evaluation under DC 6066. The Veteran's private eye examination from August 2015 shows an uncorrected distance vision of 20/200 for his left eye, again warranting a 20 percent evaluation under DC 6066. Lastly, the Veterans VA examination in November 2015 shows his uncorrected distance vision to be 20/100 in his left eye, warranting a 10 percent evaluation under DC 6066. VA regulations provide that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. 38 C.F.R. § 4.7. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's disability picture more closely approximates a 20 percent disability rating since September 19, 2010. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Other Diagnostic Codes must be considered in evaluating the Veteran's eye condition. Although the Veteran was found to have glaucoma in a December 2010 private eye examination, glaucoma is to be evaluated on the basis of either visual impairment due to angle-closure glaucoma or incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79, DC 6012. As the Veteran's medical treatment records do not indicate any incapacitating episodes, evaluating the Veteran's left eye disability based on visual impairment would lead to the same results as above. Additionally, the Veteran was not found to have any visual field defects or issues relating to eye muscle function. Increased Rating for Corneal Scars, Including Based on Disfigurement After a review of the evidence of record, the Board finds that a separate initial compensable rating is not warranted for corneal scars, including based on disfigurement. The VA examination in November 2015 and the addendum opinion provided by the same VA examiner in August 2016 do not indicate any characteristics of disfigurement of the left eye due to the corneal scars. The VA examiner noted that the scars were 2.8 mm, 2.5mm, and 1mm in length. The scars were found to cause no elevation or depression of the cornea, no tissue loss, and there was no adherence of the scar to underlying tissue. In sum, the schedular criteria for a compensable disability rating for the service-connected corneal scarring residuals of a left eye injury have not been met. The Board has considered all potentially applicable Diagnostic Codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran could not have received higher ratings under another DC. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable rating of 20 percent under Diagnostic Code 6027-6066 for residuals of a left eye injury from September 19, 2010 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a separate initial compensable rating for corneal scars, including based on disfigurement, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs