Citation Nr: 18154011 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-30 177 DATE: November 29, 2018 ORDER New and material evidence not having been received, reopening of the claim of entitlement to service connection for pterygium, right eye, is denied. A rating in excess of 10 percent for pterygium, left eye, postoperative recurrent with scarring, is denied, but a separate 10 percent rating for dry eye syndrome associated with the left eye disability is granted, effective August 20, 2014. FINDINGS OF FACT 1. In May 1969, the RO issued a rating decision and denied service connection for pterygium, right eye, on the basis that it preexisted the Veteran’s service and was not aggravated during his active service. 2. In May 1977, the RO declined to reopen the claim on the basis that there was no new evidence suggesting aggravation of the right eye pterygium in service; following the Veteran’s appeal, the Board denied the claim in July 1980. 3. In January 2002, the RO again denied the claim on the basis that there was no new evidence suggesting in-service aggravation of the right eye pterygium. 4. The Veteran did not appeal the May 1969 RO decision, the July 1980 Board decision, or the January 2002 RO decision, and did not file any new evidence related to right eye pterygium within one year of any of the aforementioned decisions. 5. The evidence added to the record since the January 2002 shows ongoing treatment related to right eye pterygium, but does not include any evidence related to the symptoms experienced during service or any suggestion by a competent medical professional that the right eye pterygium worsened during the Veteran’s active service; thus, the new evidence does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for pterygium, right eye. 6. The Veteran’s left eye pterygium, postoperative, recurrent with scarring, is not manifested by loss of visual acuity or loss of visual fields; by active conjunctivitis; or by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, including the eyes and eyelids, or with two or three characteristics of disfigurement. 7. The Veteran has had symptomatic dry eye in the service-connected left eye since August 20, 2014, which has been deemed due to the surgeries associated with the service-connected left eye. CONCLUSIONS OF LAW 1. New and material evidence was not received to reopen the claim of entitlement to service connection for pterygium, right eye. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for a rating in excess of 10 percent for pterygium, left eye, postoperative, recurrent with scarring, have not been met at any time, but the criteria for a separate 10 percent rating for dry eye syndrome associated with the left eye disability have been met, effective August 20, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.79, Diagnostic Codes 6034, 6025 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence was received to reopen the claim of entitlement to service connection for pterygium, right eye. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran is seeking to reopen the claim for service connection for pterygium, right eye. The Veteran originally sought service connection for pterygium in the left eye in January 1969. The May 1969 rating decision addressing that claim awarded service connection for the pterygium, left eye, as well as considered and denied service connection for the right eye. The basis for the RO’s decision was that the Veteran entered service with pterygium in both eyes noted on the entrance examination. During service, the Veteran underwent surgery to remove the pterygium in both eyes. Only the left eye had a recurrence of the pterygium and a second surgery in service; thus, service connection was awarded for the left eye on the basis of aggravation, but denied for the right eye on the basis of a preexisting disorder that was not aggravated during service. The Veteran did not file a notice of disagreement with this decision, but filed a claim to reopen service connection for the right eye in March 1977, simply stating that he felt service connection was warranted because he had an in-service operation on the right eye. The only medical evidence provided was clinical evidence showing ongoing treatment for the disorder. The RO found no basis for changing the previous determination and continued the denial in June 1977. The Veteran perfected an appeal as to that rating and, in July 1980, the Board issued a decision finding no evidence of an increased severity of right eye pterygium in service and denying the claim. In March 2001, the Veteran again raised the claim for service connection for right eye pterygium. Following a September 2001 VA examination, which did not give any indication of in-service aggravation of right eye pterygium, the RO again denied the claim in January 2002. The RO noted the ongoing clinical records showing treatment using drops and ointments for the right eye, and noted the findings in the September 2001 examination report, but found there to be no evidence of aggravation of the right eye during service. The evidence of record and considered at that time included the service treatment records, post service outpatient records and VA examination reports. In November 2012, Veteran contacted his Congressman and the office of the Congressman made an inquiry with VA. In November 2012, the RO responded to the Congressional inquiry and indicated the inquiry was deemed a claim to reopen service connection for right eye pterygium. The RO denied the claim by way of the June 2013 rating decision on appeal. The evidence received since January 2002 includes ongoing outpatient clinical records, a June 2011 operative report, March 2013, September 2015 and August 2018 VA examination reports, and the Veteran’s lay statements. The clinical records show ongoing care with prescriptions for drops and ointments to manage the symptoms in the right eye, but no mention of the severity of the condition in service and no suggestion that the current symptoms are representative of a worsening during the Veteran’s active service. In June 2011, the Veteran underwent a pterygium excision, placement of mitomycin-C, and amniotic membrane transplant to treat pterygium, right eye. The procedure was noted to be successful with no complications. There was no discussion in the report of the Veteran’s history. In March 2013, the Veteran underwent a VA examination of his eyes. At this time, the Veteran reported being very happy with the current appearance of both of his eyes and remarked that his eyes were the best they have been in thirty years. The examiner made no findings related the Veteran’s active service. Also in March 2013, the Veteran submitted a statement in support of his claim. The Veteran indicated his understanding of the need to submit new evidence showing aggravation of his right eye condition during service. He restated his contention that the aggravation is shown by the in-service surgery. He reported knowing the pterygium existed prior to service, but that he did not have symptoms prior to the in-service surgery. He stated his belief that if he had not had the surgery in service, he would not have developed the later symptoms. The Veteran was then afforded a VA examination in September 2015. The examiner noted the in-service surgery and also noted that the Veteran’s condition has progressed and has not resolved. There was no opinion on the aggravation question. Most recently, the Veteran was examined in August 2018. The examiner recognized the presence of recurrent pterygium, postoperative state of the eye and dry eye. The examiner also summarized the Veteran’s long history. The examiner went on to explain that an opinion on whether the in-service surgery aggravated the right eye condition was not possible because the natural progression of the Veteran’s pterygium is unknown due to the altered state caused by the various surgeries. The examiner did conclude, however, that the Veteran’s pre-existing pterygium in the right eye are still present after the surgeries, that they are small and it is unknown how large they were before the initial surgery. The examiner also noted that there was no recurrence of the right eye pterygium during the Veteran’s active service, and explained that recurrence of pterygium after surgery is a known complication, particularly with the surgical techniques of the 1960’s. Based upon these factors, the examiner opined that any pre-existing pterygium of the right eye was not aggravated by the surgeries, noting only that they were there before the surgery and are still there. In sum, the evidence added to the claims file since the January 2002 denial include clinical records and VA examination reports, none of which suggest the Veteran’s preexisting right eye pterygium was aggravated during his active service, to include due to the in-service surgery. Further, the lay statements submitted since January 2002 merely restate the claim and are cumulative of the prior claims. Thus, the evidence received since January 2002, although new, is not material because its factual showing is duplicative of the facts present at the time of the prior denial. The evidence is cumulative of the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. Accordingly, reopening of this claim is not in order. 2. Entitlement to a rating in excess of 10 percent for pterygium, left eye, postoperative recurrent with scarring Disability evaluations are determined by the application of the VAs Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the pterygium and its complications under review. In this case, the Veteran was originally awarded service connection for his left eye pterygium in May 1969 and a noncompensable rating was assigned. In September 1980, the RO issued a rating decision and awarded a 10 percent rating to compensate the Veteran for the red discoloration in the left eye secondary to corneal scarring. In November 2012, Veteran contacted his Congressman and the office of the Congressman made an inquiry with VA. In November 2012, the RO responded to the Congressional inquiry and indicated the inquiry was deemed a claim for an increased rating for the left eye pterygium. The RO denied the claim by way of the June 2013 rating decision on appeal. In response to his claim for an increased rating, the Veteran was afforded a VA examination in March 2013. At that time, he noted that since a June 2012 surgery with grafting, the appearance of his eyes had been the best it has been in thirty years. The Board notes that the date listed is likely a typo, as a copy of the June 2011 surgical report was submitted by the Veteran in November 2012 and is in the claims file. Regardless of the date of the surgery, the March 2013 examination report shows an indication of the Veteran’s satisfaction with the appearance of his eyes. The physical examination of the eyes was essentially normal, with no indication of a conjunctival disorder, no inflammatory conditions, no scarring or disfigurement, and no presence of pterygium at that time. The examiner also noted there were no symptoms of dry eye at that time. Physical examination also showed corrected near and distant visual acuity of 20/40 or better. The only abnormal finding was cataract in both eyes. The Veteran was again examined in September 2015. The examination at this time did reveal the presence of pterygium in the left eye, as well as scarring. Conjunctiva citrix was also listed, although no symptoms were described as present. The examiner noted that there was no loss of visual acuity or any other visual impairment. Corrected near and distant visual acuity in the left eye was again 20/40 or better. There was no mention of whether or not the Veteran had dry eye at that time. By the time of this examination, the cataracts had been removed and the Veteran had replacement intraocular lens in both eyes. While the examiner noted the scarring in the history portion of the examination, physical examination revealed no scarring or disfigurement of any sort. Most recently, the Veteran was examined in August 2018. Physical examination at this time revealed corrected near and distance vision in the left eye of 20/20 or better. The left eye was also noted to have conjunctival scarring, but no corneal scarring. The examiner confirmed that this did not represent scarring or disfigurement of the eye. Pterygium was not present in the left eye at that time. The internal eye examination was normal and the examiner noted there was no visual field defect and no decrease in visual acuity. However, dry eye was noted in this examination, although the examiner did not know the date of onset. The examiner noted the clinical findings dated March 20, 2018, showing eye pain associated with dry eye and a diagnosis of dry eye at that time. The examiner found the dry eye to have most likely been caused by the prior conjunctival surgeries. The Board has also reviewed the clinical records related to the Veteran’s left eye. There are no findings inconsistent with the VA examination findings during the pendency of this claim related to the Veteran’s eye appearance or vision. The clinical findings related to dry eye show that it was initially diagnosed with artificial tears prescribed on August 20, 2014. The clinical records, like the 2018 examiner, note the dry eyes to be related to the Veteran’s surgeries. The disability at issue is evaluated under Diagnostic Code 6034 which instructs VA to evaluate pterygium under diagnostic codes concerning visual impairment, disfigurement, conjunctivitis, or other disability depending on the particular findings of record. 38 C.F.R. § 4.79. In this case, the evidence of record does not demonstrate that the Veteran’s service-connected left eye pterygium was manifested by an impairment of central visual acuity or visual fields at any time during the pendency of this claim. The Veteran’s corrected visual acuity is shown to be either 20/40 or 20/20 in the left eye at all times and there is no noted visual field impairment. Impairment of central visual acuity and impairment of visual fields are evaluated pursuant to 38 C.F.R. § 4.79, Diagnostic Codes 6061 through Diagnostic Code 6081. The Veteran’s left eye pterygium does not more nearly approximate a compensable rating under any of the diagnostic codes pertaining to vision impairment. 38 C.F.R. §§ 4.7, 4.79, Diagnostic Codes 6061 through 6081 (2017). Moving to disfigurement, under VA regulation, disfigurement of the head, face, or neck is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7800. The currently assigned 10 percent rating is warranted when a veteran possesses at least one of eight disfiguring characteristics as defined in the Rating Schedule. The eight characteristics of disfigurement are: a scar five or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (0.6 centimeters) wide at widest part; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, 7800, Note (1) (2017). In this case, the 10 percent rating that has been in place was based upon the redness in the eye, characterized as scarring. For the next higher, 30 percent rating, there must be visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, including the eyes and eyelids; or with two or three characteristics of disfigurement. Id. In this case, there is no evidence of tissue loss, gross distortion of the eyes or eyelids, or any additional symptoms that can be characterized as any of the eight disfiguring characteristics. Hence, there is no basis for a rating in excess of 10 percent for disfigurement. Conjunctivitis is evaluated under 38 C.F.R. § 4.79, Code 6018. Pursuant to Diagnostic Code 6018, a 10 percent rating is warranted for active conjunctivitis, with objective findings such as red, thick conjunctivae and mucous secretions, among other symptoms. Such findings have not been demonstrated at any time during the course of this appeal. For inactive conjunctivitis, Diagnostic Code 6018 instructs VA to evaluate the disability based on the residuals, such as visual impairment or disfigurement, which are discussed above. Thus, the evidence does not show a rating in excess of 10 percent is warranted for the left eye pterygium under any of the applicable rating criteria, to include loss of visual acuity or visual fields, disfigurement or conjunctivitis. However, the evidence does show that the Veteran has had dry eye syndrome since August 20, 2014, which has been attributed to the conjunctival surgeries associated with this service-connected condition. Under Diagnostic Code 6025, a 10 percent rating is warranted for unilateral disorders of the lacrimal apparatus. The medical evidence first establishes the onset of dry eye syndrome on August 20, 2014. Thus, a separate 10 percent rating for dry eye syndrome is warranted effective August 20, 2014. In sum, the Board finds that a rating greater than 10 percent for left eye pterygium is not warranted, but a separate 10 percent rating for dry eye syndrome associated with the left eye pterygium is warranted effective August 20, 2014. There is no further doubt of material fact to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b) (2012). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel