Citation Nr: 18161193 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-50 373 DATE: December 28, 2018 ORDER Entitlement to service connection for loss of eyelashes, to include as secondary to service-connected corneal scar, left eye, is denied. Entitlement to an initial 10 percent rating, and no higher, for corneal scar, left eye, is granted. FINDINGS OF FACT 1. The most probative evidence establishes that the appellant does not have a current disability manifested by loss of eyelashes which was incurred in or otherwise causally related to his active service, or caused or aggravated by service-connected corneal scar, left eye. 2. The appellant’s corneal scar, left eye, is manifested by pain and irritation. Such is neither visually impairing nor disfiguring; and such did not result in incapacitating episodes having a total duration of at least 2 weeks in any 12-month period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for loss of eyelashes due to eye injury have not been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2018). 2. The criteria for an initial 10 percent rating, and no higher, for corneal scar, left eye, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.75, 4.83a, 4.84a, DCs 6066-6009. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from April 1983 to April 1986. He is the recipient of the Army Good Conduct Medal and the Army Achievement Medal on three occasions. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, awarded service connection for corneal scar, left eye, and assigned an initial noncompensable rating, and denied service connection for loss of eyelashes as secondary to an eye disability. The appellant filed a timely Notice of Disagreement (NOD), received in December 2014. A Statement of the Case (SOC) was issued in September 2016. A timely substantive appeal was received in October 2016. A September 2016 rating decision, inter alia, awarded service connection for ocular headaches effective November 7, 2012, and assigned an initial noncompensable rating. The grant of service connection for headaches constitutes a full award of the benefit sought on appeal with respect to that claim. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). This rating decision also awarded an earlier effective date of November 7, 2012, for the award of service connection for corneal scar, left eye, because a clear and unmistakable error had been made in the original assignment of an effective date of October 18, 2013. The appellant was afforded a hearing by videoconference before the undersigned in July 2018. A transcript is of record. Background The appellant’s service treatment records indicate that he experienced flash burns from an emersion heater which exploded in August 1984. Small dirt particles were found in the eyes. His facial hair was singed. His March 1986 separation examination report indicates that examination of the eyes, both general and ophthalmologic, was essentially normal. Records from Ocala Eye are negative for a diagnosed disability manifested by loss of lashes. In a statement received in November 2013, the appellant reported that the in-service explosion took off his facial hair, including lashes and brows. Over the years, his eyebrows grew back unevenly. He reported that his eyelashes never fully returned. Further, they fall out daily. He endorsed eye-watering as well. A June 2014 MRI revealed that there were no metallic foreign bodies overlying the orbits. The appellant was afforded a VA examination in October 2014. The claims file was reviewed. He was diagnosed with an inferior corneal scar, left eye, not visually impairing or disfiguring. Examination revealed uncorrected distance vision of 20/100 in the right eye and 20/200 in the left. Uncorrected near vision was 20/40 or better in both eyes. Distance and near vision were correctable to 20/40 or better bilaterally. There was no anatomical loss, light perception only, extremely poor vision, blindness, astigmatism, or diplopia. External examination of the eyes revealed that there was no loss of lashes or brow of either eye. There was a stromal scar at 7 on the left eye. There was no visual field defect. There was a surface contour of left stromal scar elevated or depressed on inspection. Such was neither visually impairing nor disfiguring. The corneal scar was not visible unless under high magnification. There were no incapacitating episodes and there was no impact on the appellant’s ability to work. The VA examiner opined that it was at least as likely as not that the appellant’s corneal scar was the result of his in-service injury, particularly as there was a history of small dirt particles following trauma. However, examination was negative for loss of lashes. In his December 2014 NOD, the appellant reported that his left eye wanders and his eyelashes come off into his eyes daily. For years following the in-service explosion, particulates came to the surface of his eyes. He endorsed daily eye problems. In a statement received in April 2016, the appellant reported that he was still having trouble with his eyes following the in-service explosion, including trouble with his scar and with pain. Clarification was requested from a VA clinician in May 2016 as to whether the corneal scar was on the right eye or the left. The clinician indicated that examination would be necessary to provide such clarification. Thus, the appellant was afforded a VA examination in June 2016. The claims file was reviewed. The appellant was diagnosed with corneal scar, left eye, not visually impairing or disfiguring. The appellant endorsed pain around the left eye twice weekly, lasting for 40 minutes. The appellant will close his eye and hold his palm against his eye. Examination revealed uncorrected distance vision of 20/100 in the right eye and 20/200 in the left. Uncorrected near vision was 20/40 or better in both eyes. Distance and near vision were correctable to 20/40 or better bilaterally. There was no anatomical loss, light perception only, extremely poor vision, blindness, astigmatism, or diplopia. External examination of the eyes revealed that there was no loss of lashes or brow. There was a mid-peripheral corneal scar at 7 on the left eye. There was no visual field defect. There was a surface contour of left corneal scar elevated or depressed on inspection. Such was neither visually impairing nor disfiguring. It was not visible unless under high magnification. There were no incapacitating episodes and there was no impact on the appellant’s ability to work. The VA examiner clarified that the corneal scar was on the left eye and that there was no corneal scar on the right eye. The May 2014 diagnosis of corneal scar, right eye, appeared incorrect as that examination indicated the presence of a corneal scar on the left eye, but not the right. In his October 2016 substantive appeal, the appellant reported that his eyelashes and left eye never recovered following the in-service explosion. His left eye hurts almost every day; and he experiences head pain behind his eye. He stated that the scar on his left eye was the source of the pain. During his July 2018 hearing, the appellant testified that his corneal scar is painful when he blinks. He endorsed tenderness and feelings of obstruction and his eyelid being scratched the scar. He wears dark glasses due to light sensitivity. He reported that his eyelashes seem to fall out every day. He endorsed pain in his eyeball. His in-service injury came from an explosion. His facial hair, including eyelashes and eyebrows, were taken off by the explosion. His eyes were washed out for several days. Metal and debris were found. However, he has not had any debris removed from his eye in many years. But his eyes still bother him constantly. With respect to his eyelashes, the appellant testified that his eyelashes continually fall out. Although they came back somewhat following the explosion, they were not as full as they had once been. His lashes continue to fall out at a high rate. The appellant endorsed irritation in the form of his corneal scar because he can feel it and its pain at all times, while working and while sleeping. The scar did not affect his ability to see clearly, but the symptoms were irritation and pain. The appellant reported that he was hospitalized in Grafenwoehr or Wilflingen, Germany, while on active duty, following the in-service injury. He was unsure if these records had been obtained. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Loss of eyelashes is not a qualifying chronic disability for the purposes of these provisions. To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Loss of Eyelashes Upon weighing the evidence, the Board finds that service connection for loss of eyelashes is not warranted as the most probative evidence establishes that the appellant does not have a current disability manifested by loss of eyelashes during the period on appeal. Although appellant is certainly competent to report symptoms and observations, such as missing eyelashes, eyelashes falling out, and eyelashes not being as thick as they once were, because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the VA examination reports to be of greater probative weight than the appellant’s lay assertions with respect to whether he has a disability manifested by loss of eyelashes caused by the in-service accident. The Board emphasizes that the outcome would not change if any of the Germany hospital records referenced during the appellant’s Board hearing were obtained. The claim of service connection for a disability manifested by loss of eyelashes is being denied because the current disability element has not been met. It is undisputed that the appellant experienced an in-service injury of the aforementioned explosion. Congress has explicitly defined VA’s duty to assist in terms of relevance. See McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008). Indeed, “[r]elevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim.” Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131. Thus, where the collective lay and medical evidence indicates that, fundamentally, the appellant does not have a current disability for which service connection is sought, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The Board notes that “disability” as defined in 38 U.S.C. §§ 1110 and 1131 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and that pain alone can reach the level of a functional impairment of earning capacity. Saunders v. Wilkie, No. 2017-1466, Fed. Cir. (April 3, 2018). In this case, however, there is no indication, nor is it contended, that the appellant experiences any residuals of loss of eyelashes which cause a functional impairment in earning capacity. Rather, based on the evidence of record at this time, the Board must conclude that the most probative evidence of record indicates that there is no current disability manifested by loss of eyelashes and his claim of service connection for such must be denied at this time. See 38 C.F.R. §§ 3.102, 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim.”); Brammer, supra. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous. . . .” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. The appellant’s corneal scar, left eye, has been rated by analogy under Diagnostic Code (DC) 6066-6009. DC 6066 is for impairment of central visual acuity. DC 6009 is for unhealed eye injury and is among the eye disabilities for which the General Rating Formula for Diseases of the Eye is to be used. The General Rating Formula directs that the disability be rated on the basis of either visual impairment or on incapacitating episodes, whichever results in a higher rating. 38 C.F.R. § 4.79, DC 6009. Entitlement to an initial compensable rating for corneal scar, left eye The issue certified to the Board is entitlement to an initial compensable rating for corneal scar, left eye. For the reasons that follow, the Board finds that the evidence is in relative equipoise as to whether the appellant’s symptomatology attributable to his corneal scar, left eye, more nearly approximates the level of disability contemplated by an initial 10 percent rating. The appellant has competently and credibly reported pain and irritation from his left corneal scar. Based on the foregoing, the Board finds that an initial 10 percent rating is warranted under the rating criteria pertaining for scars. A compensable rating is not warranted for any portion of the period on appeal under the General Rating Formula for Diseases of the Eye. There is no evidence, nor is it contended, that the appellant’s corneal scar affects his ability to see. Indeed, the appellant denied visual impairment during his July 2018 Board hearing. There is no evidence, nor is it contended, that the appellant experienced incapacitating episodes having a total duration of at least two weeks during any 12-month period. Indeed, the October 2014 and June 2016 VA examination reports indicated that there were no such episodes. There is no evidence, nor is it contended, that the corneal scar is disfiguring. Rather, the examination reports indicate that such is not visible without being under high magnification. Thus, the Board can find no basis upon which to award a compensable rating under the rating criteria pertaining to visual acuity. DC 6066-7800. However, based on his symptoms, the Board finds that a 10 percent rating may be assigned for a painful scar. An initial rating in excess of 10 percent under a diagnostic code for scars, however, is not warranted. 38 C.F.R. § 4.118. Under DCs 7800-7805, a rating in excess of 10 percent is warranted if there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or two or more characteristics of disfigurement, see DC 7800, if the area is at least 12 square inches (77 square cm.), see DC 7801, or if there are three or more painful or unstable scars, see DC 7804. However, in the instant matter, there is no indication, nor is it contended, that the appellant has such symptoms. The Board observes that 38 C.F.R. § 4.118 was amended, effective August 13, 2018. See 83 Fed. Reg. 32, 592 (July 13, 2018). Relevant to the instant matter are changes to DCs 7801, 7802, and 7805. The amended DC 7801 now discusses burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. The amended DC 7802 is for burn scars or scars due to other causes, not of the head face or neck, that are not associated with underlying soft tissue damage. New notes for DCs 7801 and 7802 define various zones of the body and indicate that separate evaluations may be assigned for each affected zone. The amended DC 7805 is for scars, other; and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804. Any disabling effects not considered under such DCs should be evaluated under a diagnostic code. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board finds that the revised version of the regulation is no more or less favorable than the version in effect prior to August 13, 2018, in the instant matter because the appellant would not be entitled to an initial rating in excess of 10 percent under the revised version of the regulation. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award an initial 10 percent rating, and no higher, for corneal scar, left eye. (Continued on the next page) K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel