Citation Nr: 1755706 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 14-06 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating for uveitis, left and right eye, on a schedular basis. 2. Entitlement to an initial compensable rating for uveitis, left and right eye, on an extraschedular basis. 3. Entitlement to a higher rating for lumbar seronegative spondyloarthropathy with early lumbar degenerative disease (low back disability), rated as 10 percent disabling prior to July 11, 2014, and 20 percent disabling thereafter. 4. Entitlement to an initial rating in excess of 10 percent for left knee, small tears involving the body of the lateral meniscus, low-grade patellar chondromalacia and seronegative spondyloarthropathy (left knee disability). 5. Entitlement to an initial rating in excess of 10 percent for right knee seronegative spondyloarthropathy (right knee disability). 6. Entitlement to an initial rating in excess of 10 percent for left ankle seronegative spondyloarthropathy (left ankle disability). 7. Entitlement to an initial rating in excess of 10 percent for right ankle seronegative spondyloarthropathy (right ankle disability), excluding a period of temporary total rating for convalescence. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD Roya Bahrami, Counsel INTRODUCTION The Veteran had active service from August 2008 to March 2009. This appeal to the Board of Veterans' Appeals (Board) arose from three rating decisions of the RO. A June 2010 rating decision granted service connection for disabilities of the low back, bilateral knees, and bilateral ankles, and assigned 10 percent ratings for each disability effective March 25, 2009. In a timely notice of disagreement (NOD), the Veteran disagreed with the ratings assigned. Thereafter, a January 2011 rating decision denied TDIU. Finally in this regard, a July 2014 rating decision granted service connection for uveitis of each eye and granted zero (noncompensable) ratings, effective February 7, 2013 for the left eye, and July 8, 2014 for the right eye. The Veteran disagreed with the ratings assigned in a timely NOD. The Veteran's February 2014 VA Form 9, Appeal to the Board of Veterans' Appeals (BVA), contains a request for a BVA videoconference hearing. In a June 2016 correspondence, the Veteran, through his attorney, withdrew his request. See 38 C.F.R. § 20.704(e) (2017). As for the matter of representation, as reflected in the prior remand, the Veteran was previously represented by Attorney Kenneth L. Lavan. However, in July 2015, the Veteran executed a VA Form 21-22, Appointment of Individual as Claimant's Representative, in favor of Attorney Ralph J. Bratch (thereby revoking the power of attorney in favor of Attorney Kenneth L. Lavan, see 38 C.F.R. § 14.631(f)(1) (2017)). The Board recognizes the change in representation. As a final initial matter, the Board notes that additional evidence was submitted after the January 2016 statement of the case (SOC) regarding the matter decided herein (uveitis, left and right eye). However, in a November 2016 statement, the Veteran, through his attorney, explicitly waived local consideration of all evidence submitted following the January 2016 SOC. The decision regarding the issue of entitlement to a higher initial rating for uveitis, left and right eye, is set forth below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the competent and credible evidence shows that, throughout the time period on appeal, the Veteran's uveitis of the left and right eyes was manifested by corrected distant vision of 20/40 or better in each eye, without active pathology to include pain, rest-requirements, or episodic incapacity, and without objective evidence of diplopia, impairment of muscle function, or visual field defect. CONCLUSION OF LAW The criteria for an initial compensable rating for uveitis of the left and right eyes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.75, 4.76, 4.76a, 4.84a, Diagnostic Codes 6000, 6003, 6061-6080 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with regard to the duty to notify or duty to assist for his claim for a compensable schedular rating for uveitis of the left and right eyes. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the appeal stems from a request for higher rating following the award of service connection, evaluation of the evidence pertinent to the original claim, and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). During the rating period on appeal, the Veteran's service-connected uveitis of the left and right eyes have been rated as noncompensable under 38 C.F.R. § 4.79, Diagnostic Code (DC) 6000. Under the General Rating Formula for Diagnostic Codes 6000 through 6009, uveitis is to be rated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher rating. Generally, rating based on visual acuity is based on the best corrected distant vision. 38 C.F.R. § 4.76 (b) (2017). A noncompensable rating is assigned when vision is at best 20/40 in both eyes; there is no rating for visual acuity better than that. 38 C.F.R. § 4.79. Under the General Rating Formula, a 10 percent evaluation is warranted with evidence of incapacitating episodes having a total duration of a least one week, but less than two weeks, during the prior 12 months. A 20 percent evaluation is warranted with evidence of incapacitating episodes having a total duration of a least two weeks, but less than four weeks, during the prior 12 months. A 40 percent evaluation is warranted with evidence of incapacitating episodes having a total duration of a least four weeks, but less than six weeks, during the prior 12 months. Finally, a 60 percent evaluation is warranted with evidence of incapacitating episodes having a total duration of at least six weeks during the prior 12 months. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Turning to the pertinent evidence of record, an October 2012 VA Medical Center (VAMC) Report of Hospitalization indicated that the veteran was hospitalized for severe anterior uveitis. The Veteran was admitted on October 12 and was discharged on October 2013. An October 12 optometry consultation note indicated that the Veteran had complained of red eye OS (left) which had begun two days previously and had progressively worsened. He endorsed cloudy vision, pain if he touched his eyelids, a lot of pressure, phototopia, and itchiness. Visual acuity without correction was 20/20 in the right and 20/70 in the left. Normal vision was 20/25 or better. The examiner prescribed homatropine eye drops in the left eye, three times daily. An October 2012 ophthalmology consultation note indicated that the Veteran followed up for iritis left eye. Overall, the Veteran stated his eye was getting better but it felt sore to the touch today. Certain eye movements made the pain worse. Photophobia was much improved. Vision was improving. There was a floater on the left, but no flashing lights. Visual acuity without correction was 20/20 in the right and 20/20 in the left. An October 2012 primary care note indicated that the Veteran had recently been admitted with uveitis related to spondyloarthritis. He was using steroid eyedrops, and his eye was improving significantly. Objectively, there was mild redness of the eye, which was improving. An October 2012 rheumatology consultation note indicated that the Veteran underwent a Kenalog injection to the left eye. Left eye had redness and swelling at the lateral aspect, right eye was without inflammation. A November 2012 VA rheumatology outpatient note indicated that the Veteran reported a 65 percent improvement in his left eye vision since his initial uveitis flare. He denied any eye pain, and still had blurriness in the left eye, and difficulty reading. A March 2013 VA rheumatology outpatient note indicated that the Veteran's left eye vision improved, though remained blurred. His eye no longer felt irritated. An April 2013 VA ophthalmology note indicated that the Veteran had a recent bout of anterior uveitis and had Kenalog injection in October. He had been having difficulty reading. Distance vision was also cloudy OS (left eye). No photophobia. Occasional ocular pain OS (once every couple of weeks). Blurry vision OS. VAsc testing (distance visual acuity without correction) was 20/20 bilaterally. EOM (extraocular movement) was full bilaterally. Pupils 3-2 right, 4 mm left (slight movement)-no afferent pupillary defect. The examiner noted that the Veteran was doing well for eye standpoint, and had cloudy vision left eye due to cataract. A February 2014 VA rheumatology outpatient note indicated that the Veteran reported his left eye vision was unchanged, sometimes blurry but most of the time it was clear, and he had no pain. A May 2014 VAMC report of telephone contact indicated that the Veteran reported he developed right eye anterior uveitis. A VA optometry outpatient note indicated that the Veteran had red eye OD (right) for two days. He used steroid drops the previous night with no improvement. He also complained of tearing/watering of the right eye for two days. He endorsed photosensitivity, pressure around eye, and blurry vision. Visual acuity without correction was 20/20 in the right eye. The Veteran was prescribed prednisone forte. A few days later, the Veteran reported had successfully treated his uveitis in the right eye with topical medication. Visual acuity without correction was 20/25 bilaterally. On July 2014 VA eye conditions examination, the examiner diagnosed uveitis bilaterally secondary to psoriatic arthritis, and posterior synechiae of the left eye secondary to psoriatic arthritis. The Veteran stated that he was diagnosed with uveitis of the left eye about one and a half years prior, and was getting uveitis in the right eye for about a month. The left eye flare up had been so bad at some points that he had a steroid injection for the left eye in 2012. He was treated with prednisone acetate when it flared up. Physical examination revealed 20/40 or better visual acuity with uncorrected and corrected near and distance. The left pupil did not move normally due to posterior synechiae. The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. Visual field testing did not reveal a visual field defect. The Veteran did not have incapacitating episodes attributable to any eye conditions in the previous 12 months. The examiner further noted that so long as the eye remains quiet, his vision and eye comfort is good. He does/will have significant issue with pain/blurred vision if/when the uveitis is active. A December 2014 VA rheumatology outpatient note indicated that the Veteran had some irritation in the left eye. A February 2015 VA optometry consult indicates that the Veteran requested glasses. He reported stable vision since his last examination in May 2014. He still had floaters in the left eye, which appeared stable. He reported no symptoms of ocular inflammation. With refraction, vision was 20/25 or better. A July 2015 VA rheumatology outpatient note indicated that the Veteran had no eye symptoms. A November 2015 VA rheumatology outpatient note indicated that the Veteran reported a flare in uveitis beginning 3 days prior. He had a red left eye and was photosensitive. He was using prednisone drops. The examiner noted that the Veteran had poor compliance with his infusions for his psoriatic arthritis, and was urged to return for his infliximab infusions in the time recommended or would risk worsening joint pains and possible vision loss. A January 2016 VA rheumatology outpatient note indicated that the Veteran had mild left eye symptoms that just started today. The examiner refilled steroid eye drops Given the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for his service-connected uveitis of the left and right eyes. Throughout the period on appeal, the Veteran has not had visual acuity or field loss, pain, rest-requirement or episodic incapacity due to uveitis. Although the Veteran received overnight hospitalization for his left eye uveitis in October 2012, there is no indication that he was prescribed bed rest for at least a week during any 12 month period. The preponderance of the evidence is therefore against the claims. There is no doubt to be resolved, and initial compensable ratings for the Veteran's uveitis are not warranted. See 38 C.F.R. § 5107 (b); Gilbert, 1 Vet. App. at 54-56. For these reasons and bases, the Board finds that the preponderance of the evidence is against initial compensable ratings for uveitis of the left and right eyes, on a schedular basis. As noted in the Introduction, the claim for an increased evaluation on an extraschedular basis, as well as the claim for TDIU, are being remanded herein. ORDER Entitlement to an initial compensable schedular rating for uveitis, left and right eye, is denied. REMAND Regarding the claims for higher ratings for disabilities of the low back, bilateral knees, and bilateral ankles, the Veteran underwent VA examinations in November 2012, and July 2014. However, neither of the examination reports include testing on weight-bearing and non-weight bearing, or on active and passive motion. In this regard, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held "that the final sentence of [38 C.F.R.]§ 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." Id. at 168. In order for an examination report to be adequate it must include testing on active motion, passive motion, weight-bearing, and non-weight bearing. Id. In light of Correia, the Board finds that the examination reports of record are inadequate because they do not include the above range of motion requirements. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A remand is therefore warranted to provide the Veteran a new VA examination to determine the present level of disability in accordance with 38 C.F.R. § 4.59 as interpreted in Correia. With regard to the claim for a compensable rating for uveitis, left and right eyes, the Board decides the question of whether a higher initial rating is warranted on a schedular basis in the first instance, as demonstrated above. However, the Board finds that the question of whether a compensable rating on an extraschedular basis should be awarded requires a remand for referral to the Director, Compensation Service. In a November 2016 statement, the Veteran's attorney argued that extraschedular consideration is warranted for the Veteran's symptoms of blurriness and pain, which are not contemplated in the rating criteria which primarily address incapacitating episodes and decreased visual acuity. In light of such arguments, the Board finds that the issue of entitlement to an increased rating for uveitis of the left and right eyes should be referred to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 3.321 (b)(1). Regarding the issue of entitlement to a TDIU, the evidence of record reflects that the Veteran's unemployability may be caused, at least in part, by the service-connected disabilities herein remanded. Thus, the Board finds that a remand of this issue is warranted as well. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (where facts underlying separate claims are "intimately connected," interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). The Board also notes that the Veteran initially claimed entitlement to TDIU in October 2009. He submitted a second claim for TDIU in December 2013, but noted that he was participating in vocational rehabilitation and going to school for a Bachelor's in Science in education. Thus, while this matter is being remanded, the AOJ should attempt to obtain updated information regarding the Veteran's education and employment status. Accordingly, these matters are REMANDED for the following action: 1. Contact the Veteran to request updated information regarding his education and employment history. 2. Refer the Veteran's claim for a compensable rating for uveitis of the left and right eyes to the Director, Compensation Service for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b)(1) (2017). The response must be associated with the Veteran's file. 3. Afford the Veteran a VA examination to ascertain the current severity of his low back, bilateral knee, and bilateral ankle disabilities. The VA electronic claims file must be made available to and reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's lumbar spine, left and right knees, and left and right ankles, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing, describing objective evidence of painful motion, if any, during each test. If any of these findings are not possible, please provide an explanation. The examiner should further describe how the symptoms of his service-connected low back, bilateral knee, and bilateral ankle disabilities affect his occupational functioning. A complete rationale should be provided for any opinions offered. 4. After completing the above actions, as well as any other development that may be warranted, readjudicate the claims for increased rating for disabilities of the low back, left and right knee, left and right ankle, uveitis of the left and right eyes, and TDIU in light of all the evidence of record. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs