Citation Nr: 1800234	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO. 13-31 699	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial compensable disability rating for bilateral eye lattice degeneration.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1982 to February 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In November 2017, the Veteran provided personal testimony before the undersigned in Washington, D.C. A transcript of the hearing is of record.

The issue of entitlement to an initial disability rating in excess of 10 percent for bilateral eye lattice degeneration addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Throughout the appeal, the Veteran's bilateral eye lattice degeneration has manifested in pain, photophobia, and glare sensitivity and impairment of central visual acuity of 20/25 in both eyes.


CONCLUSION OF LAW

The criteria for an increased initial 10 percent disability rating for bilateral eye lattice degeneration have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.79, Diagnostic Code (DC) 6036 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. 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 duty to assist argument).

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2017).

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 311. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Under the VA's Schedule for Rating Disabilities, eye disorders rated under DCs 6000 to 6009 are evaluated on the basis of either visual impairment or incapacitating episodes according to a General Rating Formula, whichever results in a higher rating. 38 C.F.R. § 4.79, DC 6008.

Under the General Rating Formula based on incapacitating episodes, the following ratings apply: A 10 percent rating is for assignment with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the previous 12 months; a 20 percent rating is warranted with incapacitating episodes having a total duration of at least two, but less than four weeks, during the previous 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the previous 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the previous 12 months. Id.

A note to DC 6008 defines an incapacitating episode as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider.

DC 6036 provides for a minimum 10 percent rating for pain, photophobia, and glare sensitivity. It is noted that under DC 6036 the disability is to be rated on the basis of visual impairment, with a minimum rating of 10 percent if there is pain; however it does not instruct that an additional rating for pain be combined with a compensable rating for visual impairment.

Under DC 6066, a non-compensable rating is assigned for impairment of central visual acuity when vision in both eyes is correctable to 20/40. A 10 percent rating is assigned for impairment of central visual acuity in the following situations: (1) when the corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (2) when vision in both eyes is correctable to 20/50; (3) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.79, DC 6066.

A 20 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when the corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) when the corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/50; or (4) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/50. 38 C.F.R. § 4.79, DC 6066.

The Veteran contends that a compensable disability rating is warranted for his bilateral eye lattice degeneration. Specifically, during the November 2017 Board hearing, the Veteran asserted that his symptomology of photopia, glare sensitivity, and pain is better rated as a 10 percent evaluation under DC 6036 than DC 6008 as currently assigned for incapacitating episodes.

The Veteran was afforded a VA examination in May 2011. The examination report indicates that the Veteran had refractive surgery in both eyes in 2003. The Veteran reported that he has had extreme difficulty with night time driving and glare since the surgeries. The Veteran's corrected vision was 20/25 bilaterally. In an August 2010 statement, October 2011 notice of disagreement, December 2011 statement, and September 2013 substantive appeal (VA Form-9), the Veteran indicated that he experienced starburst / halos at dusk, nighttime, and in dimly lit rooms; pain on the surface of his eyes; and bursts of light when his eyes are closed. 

Assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DCs by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 

While the Veteran has been rated under DC 6008 for his bilateral eye disability based on incapacitating episodes, the Board finds that the more appropriate DC is 6036, for status post corneal transplant, which is evaluated on visual impairment with a minimum 10 percent rating for pain, photophobia, and glare sensitivity. The Veteran is currently rated under DC 6008 which is based on incapacitating episodes. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. The evidence does not support a finding of incapacitating episodes at any point during the appeal period. 

The Veteran asserted that he experienced incapacitating episodes in the October 2011 notice of disagreement; however, for VA compensation 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, which is not shown by the record. Thus, the appropriate DC is 6036 for the Veteran's reported symptomology which more closely reflect pain, photophobia, and glare sensitivity. See Butts, 5 Vet. App. 532 (noting that a choice of DC should be upheld if supported by explanation and evidence). See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). The Veteran has consistently reported such symptomology, including during the May 2011 VA examination, August 2010, October 2011, December 2011, September 2013 statements, and during the November 2017 Board hearing.

The Board has also considered the Veteran's disability based on visual impairment. The Veteran's correctable vision is 20/25 in both eyes as reflected by the May 2011 VA examination report. A noncompensable rating is assigned for impairment of central visual acuity when vision in both eyes is correctable to 20/40, the Veteran does not meet the criteria for a noncompensable rating under DC 6066. Therefore, the appropriate rating is a 10 percent minimum rating under DC 6036 for pain, photopia, and glare sensitivity.

Affording the Veteran the benefit of the doubt, an increased initial 10 percent rating effective March 1, 2010, for pain, photopia, and glare sensitivity associated with bilateral eye lattice degeneration is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, Gilbert, 1 Vet. App. at 49.



ORDER

An increased initial 10 percent disability rating for bilateral eye lattice degeneration is granted effective March 1, 2010, subject to the laws and regulations governing the award of monetary benefits. 


REMAND

Although the Board has granted an increased initial 10 percent disability rating for bilateral eye lattice degeneration effective March 1, 2010, a review of the record discloses further development is needed with respect to the Veteran's claim of an increased rating in excess of 10 percent for bilateral eye lattice degeneration. A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim on appeal so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

During the November 2017 Board hearing the Veteran testified that he was treated at VA in March 2017 for his bilateral eye disability. The Veteran indicated that during the March 2017 VA medical visit, he had a regular examination and was prescribed eye drops and glasses; however it did not help alleviate the condition. There is no indication in the record that VA attempted to obtain these records. The omission of potentially relevant records, particularly those in the possession of VA, necessitates that the claim must be returned for additional development. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the Veteran substantiate his claim for benefits"); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding VA's duty to assist specifically includes requesting information from other Federal departments). Thus, an effort must be made to locate and associated any missing relevant medical records, VA and private, particularly VA medical records from March 2017.

On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his bilateral eye disability. 

The Board notes that while the Veteran has not directly contended a worsening of his disability since the last VA examination in May 2011, should any newly-associated records suggest a worsening of the disability, the Veteran must be afforded an opportunity to undergo a VA examination to assess the current nature, extent and severity of his bilateral eye disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include VA medical records from March 2017, should be obtained. Any negative response should be in writing and associated with the claims file.

2. After completing the above, and any other notification or development deemed warranted (to include arranging for the Veteran to undergo a VA examination(s) or obtaining a medical opinion, if appropriate) readjudicate the Veteran's claim for a higher evaluation, to particularly include all such evidence that added to the record since the last adjudication of the claims, and legal authority. 

3. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him and his representative the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs