Citation Nr: 18139812 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-03 878 DATE: October 1, 2018 ORDER The claim of entitlement to an initial, compensable rating prior to March 11, 2016, and a rating greater than 10 percent from that date, for service-connected bilateral pterygium is denied. REMANDED The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) due to bilateral pterygium, to include on an extra-schedular basis, is remanded. FINDING OF FACT Since the December 2009 effective date of the award of service connection for bilateral pterygium, the Veteran has subjectively complained of experiencing symptoms of burning, redness, and light sensitivity; however, there is no medical showing of any decrease in visual acuity, decrease in visual field, decrease muscle function, or disfigurement due to disability at any time. CONCLUSION OF LAW The criteria for an initial, compensable rating prior to March 11, 2016, or for a rating greater than 10 percent from that date, for bilateral pterygium are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b);38 C.F.R. §§ 3.102, 3.159, 4.79, Diagnostic Code (DC) 6034. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to February 1986, and from February 2003 to January 2004. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico, inter alia, granted service connection and assigned an initial 0 percent (noncompensable) rating for bilateral pterygium a, effective December 4, 2009. In March 2011, the Veteran filed a notice of disagreement (NOD) on the assigned rating for service-connected pterygium. In December 2013, the RO issued a statement of the case (SOC), and, in February 2014, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In April 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is also of record. In September 2015, the Board, inter alia, remanded the increased rating claim for further development. As that development has been completed, this claim is once again before the Board. The Board further notes while the matter was on remand, in a July 2016 rating decision, the agency of original jurisdiction (AOJ) awarded a higher, 10 percent rating for the Veteran’s bilateral pterygium, effective May 11, 2016. However, as higher ratings for the disability are available before and after that date, and a veteran is presumed to seek the maximum available benefit for a disability, the Board has now characterized the higher rating claim to reflect the staged ratings assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Also, as discussed in the remand below, the Veteran claimed in an August 2016 statement that he is unable to work due to his service-connected bilateral pterygium, as his condition requires him to visually focus on customers. In Rice v. Shinseki, 22 Vet. App. 447, 543-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is considered a component of a higher rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As such, the Board finds that a claim for TDIU due to bilateral pterygium has been raised in the context of the current higher ratings claim, and has expanded the appeal, accordingly. Analysis Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. 4.3. The 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, as here, the question for consideration is entitlement to higher rating following the initial award of service connection, evaluation of the medical evidence to consider the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. In this case, as the Veteran has already been assigned staged ratings for his pterygium, the Board will consider the propriety of the rating at each stage, as well as whether any further staged rating is warranted. As noted, the Veteran’s service-connected bilateral pterygium is rated as 0 percent disabling prior to March 11, 2016, and as 10 percent disabling from that thereafter. 38 C.F.R. § 4.79, DC 6034. The rating schedule directs that pterygium is to be evaluated based on visual impairment, disfigurement (diagnostic code 7800), conjunctivitis (diagnostic code 6018), etc., depending on the particular findings. Id. Visual impairment is rated based on the consideration of three factors: 1) impairment of visual acuity (excluding developmental errors of refraction), 2) visual field, and 3) muscle function. 38 C.F.R. § 4.75 (a). 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. 38 C.F.R. § 4.75 (b). Central visual acuity is to be evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 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, the visual acuity of the poorer eye is to be evaluated using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. 38 C.F.R. § 4.76 (b). When both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the evaluation is determined by separately evaluating the visual acuity and visual field defect (expressed as a level of visual acuity) and combined under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.77(c). The basis for rating visual acuity takes into account the best distance vision obtainable after best correction by glasses. 38 C.F.R. § 4.75. A compensable rating for loss of visual acuity requires that corrected vision be 20/40 in one eye and 20/50 in the other. 38 C.F.R. §§ 4.84 (a), DC 6079 (2008); 4.79, DC 6066 (2017). The regulations also indicate that the extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 represents the average contraction for rating purposes. 38 C.F.R. § 4.77 (b) (2017). A 10 percent rating is warranted for concentric contraction of visual field with a remaining field of 46 to 60 degrees unilaterally or bilaterally, 31 to 45 degrees unilaterally, or 16 to 30 degrees unilaterally; a 20 percent rating is warranted for concentric contraction of visual field with a remaining field of 6 to 15 degrees unilaterally; a 30 percent rating is warranted for concentric contraction of visual field with a remaining field of 31 to 45 degrees bilaterally or 5 degrees unilaterally; a 50 percent rating is warranted for concentric contraction of visual field with a remaining field of 16 to 30 degrees bilaterally; a 70 percent rating is warranted for concentric contraction of visual field with a remaining field of 6 to 15 degrees bilaterally; and a 100 percent rating is warranted for concentric contraction of visual field with a remaining field of 5 degrees bilaterally. A 10 percent rating is also rated for a unilateral eye disability with visual defect with loss of superior half of visual field, loss of inferior half of visual field, loss of nasal half of visual field, or loss of temporal half of visual field. Higher ratings are assigned only for bilateral loss of visual field. 38 C.F.R. § 4.79, DC 6080 (2017). The Veteran has not been shown to have a diagnosis of diplopia or any impaired muscle function throughout the period of appeals, so no further discussion of DC 6090 is necessary. Under 38 C.F.R. § 4.118, DC 7800, a disability rating of 10 percent is assigned where burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck with one characteristic of disfigurement. A 30 percent rating is assigned if there are scars or disfigurement 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, A 50 percent disability rating is assigned when there are scars or disfigurement 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; and an 80 percent disability rating is assigned when there is 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. Note (1) of DC 7800 delineates 8 characteristics of disfigurement, for purposes of evaluation under § 4.118. They are: (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 issue; (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.). The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran contends that his bilateral pterygium is worse than currently reflected by his noncompensable and 10 percent ratings. In this regard, the Veteran has complained of symptoms including burning, itching, red eyes, and episodes of light sensitivity. A review of the Veteran’s service treatment records reveals that the Veteran entered service with defective vision, via a refractive error, and wore glasses to correct. He was diagnosed with myopia. He was initially diagnosed with a bilateral pterygium in May 2003 due to complaints of redness, dryness, and light sensitivity. Such diagnosis was confirmed in June 2003 by an ophthalmologist. A review of the Veteran’s post-service outpatient treatment records reveals that the Veteran has been continued to be followed for his bilateral pterygium, continuing to complain of redness, dryness, and light sensitivity. There have been no findings attributing any loss of visual acuity, loss of field of vision, loss of muscular function, or disfigurement as a result of the Veteran’s bilateral pterygium. Rather, the any loss of visual acuity or loss of field of vision found has been attributed to the Veteran’s nonservice-connected refractive error with myopia and glaucoma. The Veteran was provided with a VA examination in February 2011. On examination, following review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with a bilateral pterygium, a refractory error (myopia, astigmatism, presbyopia), mild dry eyes, ocular hypertension (suspected glaucoma), and no diabetic retinopathy found. The Veteran complained of bilateral red eyes, sunlight discomfort, and night glare. The Veteran denied any complaints of pain. The Veteran’s uncorrected distance visual acuity was 20/200 in the left eye and 20/400 in the right eye, that was corrected to 20/30 in the left eye and 20/20 in the right eye. There was no diplopia present. Visual field testing revealed the left eye showed an average contraction to 49 degrees. This was based on the following: temporally is 55 degrees; down temporally is 55 degrees; down is 45 degrees; down nasally is 50 degrees; nasally is 45 degrees; up nasally is 45 degrees; up is 45 degrees; up temporally is 55 degrees. The total remaining visual field for the left eye is 395. When this number is divided by the eight directions, rounded up, the average contraction is obtained. Visual field testing revealed the right eye showed an average contraction to 43 degrees. This was based on the following: temporally is 50 degrees; down temporally is 50 degrees; down is 35 degrees; down nasally is 45 degrees; nasally is 45 degrees; up nasally is 45 degrees; up is 35 degrees; up temporally is 40 degrees. The total remaining visual field for the right eye is 345. When this number is divided by the eight directions, rounded up, the average contraction is obtained. The examiner suggested that that Veteran be tested again to corroborate these findings. The examiner opined that the Veteran’s loss of visual acuity was caused exclusively by his refractive error. However, the symptoms of bilateral red eyes, sunlight discomfort, and night glare were attributable to the Veteran’s bilateral pterygium and mild dry eyes. It was also noted that any loss of vision, including cataracts, were not caused by or related to diabetes mellitus type II. The Veteran underwent surgery to correct his pterygium in his left eye in October 2011. No complications were noted, to include no effects of visual acuity, visual field, muscular function, or scarring or disfigurement. The Veteran was afforded an additional VA examination in March 2016, with an addendum opinion provided in July 2016. On examination, upon review of the claims file, subjective interview, and objective testing, the examiner diagnosed the Veteran with a bilateral pterygium, refractive error, dry eyes, and glaucoma. The Veteran had complaints of occasional burning in the eyes and itching eyelids. The Veteran’s uncorrected distance visual acuity was 20/200 in the left eye and 20/70 in the right eye, corrected to 20/40 or better bilaterally. The Veteran’s uncorrected near visual acuity was 20/40 or better bilaterally corrected to 20/40 or better bilaterally. The Veteran did not show evidence of a difference equal to two or more lines of the Snellen chart between corrected distance and near vision. An afferent pupillary defect was noted in the left eye. There was no diplopia present. Visual field testing revealed the left eye showed an average contraction to 48 degrees. This was based on the following: temporally is 50 degrees; down temporally is 60 degrees; down is 50 degrees; down nasally is 50 degrees; nasally is 45 degrees; up nasally is 40 degrees; up is 40 degrees; up temporally is 45 degrees. The total remaining visual field for the left eye is 380. When this number is divided by the eight directions, rounded up, the average contraction is obtained. Visual field testing revealed the right eye showed an average contraction to 49 degrees. This was based on the following: temporally is 50 degrees; down temporally is 60 degrees; down is 50 degrees; down nasally is 50 degrees; nasally is 50 degrees; up nasally is 50 degrees; up is 35 degrees; up temporally is 50 degrees. The total remaining visual field for the right eye is 395. When this number is divided by the eight directions, rounded up, the average contraction is obtained. The examiner opined that the Veteran’ bilateral pterygium did not have any functional effect on the Veteran’s usual occupation or daily activities. The examiner opined that the Veteran’s loss of visual acuity was caused exclusively by his refractive error. There is no ocular disability shown due to diabetes mellitus type II. The examiner found that there has been no progression in the Veteran’s bilateral pterygium since the February 2011 VA examination. The Veteran’s bilateral pterygium was also found to be not disfiguring and there was no associated conjunctivitis. Last, it was noted that the Veteran’s bilateral pterygium does not affect his visual field, thereby attributing any such field loss to the Veteran’s other nonservice-connected eye diagnoses. Based on the above, the Board finds that the Veteran’s bilateral pterygium does not warrant a compensable rating prior to March 11, 2016, or a rating greater than 10 percent from that date. To warrant higher ratings, the evidence must show worsened visual acuity, visual field, or muscle function than is currently reflected or the presence of disfigurement. A review of the medical evidence of record does not show that these criteria have been met at any point since the effective date of the award of service connection. Regarding the Veteran’s visual acuity, findings have shown his corrected distance vision to be within normal limits throughout the period of appeals. In any event, based upon the opinions of the February 2011 VA examiner and the March 2016 VA examiner, even if there were compensable findings in this regard, such would not be attributable the Veteran’s bilateral pterygium, as the loss in visual acuity is only attributable to the Veteran’s nonservice-connected refractive error. Therefore, a separate rating based on visual acuity is not warranted. With respect to the Veteran’s muscle function, there is no showing that there is any defect in accordance the rating criteria. Therefore, a separate evaluation for diplopia as contemplated by the Rating Schedule is also not warranted. Regarding the Veteran’s visual field, the Board finds that prior to March 11, 2016, there is no evidence that shows that the Veteran had a visual field defect that was attributable to the service-connected bilateral pterygium, thereby only warranting a 0 percent rating before that time. This is because, although the Veteran’s average field contraction for the left eye was 49 degrees and the average field contraction of the right eye was 43 degrees during the time period prior to March 11, 2016 and based upon the results of the February 2011 VA examination, and thus warranting a rating of 20 percent when the affected left eye equivalency of 20/50 vision was combined with the affected right eye equivalency of 20/70 in accordance with 38 C.F.R. §§ 4.79 Diagnostic Codes 6080 and 6066, such field loss was found not be attributable to the bilateral pterygium by the opinion of the March 2016 VA examiner. Additionally, it is noted that the February 2011 VA examiner did not even fully trust the results of the Goldman testing performed during that examination, as it was suggested that follow-up testing be performed. A review of the claims file does not show that such follow up was ever conducted. The Board also finds that, at most, the Veteran would be entitled to a 10 percent rating as of March 11, 2016, as the report of the VA examination on that date shows that his field of vision impairment is sufficient to warrant a 10 percent rating under 38 C.F.R. §§ 4.79 Diagnostic Code 6080. The Veteran’s average field contraction for the left eye was 48 degrees and the average field contraction of the right eye was 49 degrees from the date of the March 11, 2016 VA examination, and thus warranting a rating of 10 percent when the remaining field of vision was between 46 to 60 degrees bilaterally in accordance with 38 C.F.R. §§ 4.79 Diagnostic Code 6080. Notably, however, such field loss was found not be attributable to the bilateral pterygium by the opinion of the March 2016 VA examiner, such did not actually provide a basis for the RO to award the 10 percent rating. Rather, the Veteran’s only found symptoms of red eyes, burning, itching, and light sensitivity are all noncompensable in accordance with the Rating Schedule. Notwithstanding the above, however, the Board shall not disturb the 10 percent rating granted by the RO effective March 11, 2016, but finds that no rating greater than 10 percent is assignable at any point pertinent to the current claim. In assessing the severity of the Veteran’s bilateral pterygium, the Board has considered the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide. See, e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As indicated above, however, evaluation of his disability involves clinical findings and testing results which the Veteran simply is not competent to provide based on his own assertions. See 38 C.F.R. § 3.159; see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Hence, while considered, his lay assertions are not considered more persuasive than the objective clinical findings which, as indicated above, do not support assignment of a higher rating for the Veteran’s disability at any point pertinent. For all the foregoing reasons, the Board finds that there is no basis for any further staged rating of the disability, and the claim for an initial, compensable rating prior to March 11, 2016, and a rating greater than 10 percent from that date, for service-connected bilateral pterygium, must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine, but finds that no higher rating for the disability is assignable at any pertinent point. See 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND As discussed above, the Board has inferred a claim of entitlement to TDIU due to bilateral pterygium, and has taken jurisdiction over it. See Rice, 22 Vet. App. at 453-54. However, as the agency of original jurisdiction (AO) has not specifically adjudicated this matter, after furnishing the Veteran a VA Form 21-8940 for completion, and accomplishing the additional actions noted below, the AOJ must address this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The duty to assist requires that VA make all necessary efforts to obtain relevant records, to include those in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). On remand, updated VA records must be associated with the claims file The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should provide notice of what of what is needed to support a TDIU claim, and specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical and/or employment records Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action (to include arranging for examination to obtain comments regarding the functional effects of the disability on the Veteran’s ability to perform activities required for employment) prior to adjudicating the remaining claim on appeal. This matter is hereby REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940 and request that he supply the requisite information. 2. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim for a TDIU that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) medical and/or employment records. Also in the letter, provide notice of what is needed to support a claim for a TDIU due to bilateral pterygium. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for examination to obtain comments regarding the functional effects of the disability on the Veteran’s ability to perform activities required for employment), adjudicate the remaining claim for a TDIU due to bilateral pterygium considering of all pertinent evidence and legal authority. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel