Citation Nr: 1818201 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 10-26 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a compensable evaluation prior to May 6, 2010, an evaluation in excess of 10 percent from May 6, 2010 to March 16, 2015, and a compensable evaluation from March 17, 2015 for eye (vision) disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from November 1973 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This appeal has a complex procedural history as noted in the Board's January 2015 decision remanding the appeal. That history will not be repeated here. FINDINGS OF FACT 1. Prior to May 6, 2010, eye (vision) disability had not been manifested by acute symptoms severe enough to warrant bed rest and treatment by a physician or other healthcare provider; the corrected distance vision was better than 20/40 bilaterally; and there was no visual field defect. 2. From May 6, 2010, to March 16, 2015, eye (vision) disability corrected distance vision was better than 20/40 bilaterally; and there was not a visual field of less than 46 degrees. 3. From March 17, 2015, eye (vision) disability had not been manifested by acute symptoms severe enough to warrant bed rest and treatment by a physician or other healthcare provider; the corrected distance vision was better than 20/40 bilaterally; and there was no visual field defect. CONCLUSION OF LAW The criteria for a compensable evaluation prior to May 6, 2010, an evaluation in excess of 10 percent from May 6, 2010 to March 16, 2015, and a compensable evaluation from March 17, 2015 for eye (vision) disability compensable evaluation for eye (vision) disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.75-4.79, Diagnostic Codes 6000-91 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran claims that the October 2015 VA examination was inadequate because the examiner did not consider flare ups productive of decreased visual acuity with blurring and having to squint to see close and at distance. See Appellate Brief (February 2018). However, the Board finds that the VA examination report is not inadequate because the Veteran provided no history of flare ups on that examination causing decreased vision, the pertinent treatment records reflect no complaints of "flare ups," and the Veteran has a documented history of reporting visual impairment that is incongruous with objective findings and/or observations. Also, there is no indication in the record of flare ups meeting the criteria for a higher rating that assigned during this appeal. Neither the Veteran nor his representative has raised any other 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). II. Evaluations In an April 1994 rating decision, the RO granted service connection for sarcoid iritis and uveitis, assigning a noncompensable evaluation under Diagnostic Code 6000-6003. In January 2005, VA received a claim for increase, which the Board denied in an unappealed decision dated in March 2009. Soon thereafter, in March 2009, VA received a new claim for increase for sarcoid iritis and uveitis because the Veteran was "experiencing continued and worsening vision based on this condition." Subsequently, the RO granted service connection for cataracts (aggravated by service-connected iritis/uveitis) and assigned a staged rating for the Veteran's eye/vision disability. A noncompensable evaluation was assigned prior to March 17, 2015, under Diagnostic Code 6000-6003 for sarcoid iritis/uveitis; however, a 10 percent evaluation was assigned from May 6, 2010, and a noncompensable evaluation from March 17, 2015, for bilateral cataracts with sarcoid iritis/uveitis. See Rating Decision - Codesheet (December 2017). The 10 percent evaluation was predicated on the May 6, 2010, VA examination showing impaired visual field on testing (Goldman) to warrant a 0 percent evaluation based on visual acuity and a 10 percent evaluation based on visual field defect that combined under 38 C.F.R. § 4.25 for a single 10 percent evaluation. When a combination of visual field defect and decreased visual acuity are present in one or both eyes and are service connected, visual field defect (expressed as visual acuity) and visual acuity are to be separately rated, and then combined in accordance with 38 C.F.R. § 4.25. See 38 C.F.R. §4.77(c). Hence, the issue before the Board has been framed as entitlement to a compensable evaluation prior to May 6, 2010, an evaluation in excess of 10 percent from May 6, 2010 to March 16, 2015, and a compensable evaluation from March 17, 2015 for eye (vision) disability Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. See also Brady v. Brown, 4 Vet. App. 203, 206 (1993); Esteban v. Brown, 6 Vet. App. 259 (1994); and Fanning v. Brown, 4 Vet. App. 225 (1993). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Initially, the Board notes that the rating schedule for evaluating disabilities of the eyes was revised and amended effective December 10, 2008. See 73 Fed. Reg. 66543-54 (Nov. 10, 2008). The revised criteria apply to all applications for benefits received by VA on or after that date. In this case, the claim for increase was receive in March 2009, which is after the regulatory change-thus, only the new criteria are for consideration. Following the 2008 regulatory change, Diagnostic Code 6003 was removed and ratings under Diagnostic Codes 6000 to 6009 no longer involved evaluations for periods of active pathology and pain, but instead were to be evaluated on the basis of either visual impairment due to the particular condition, or on incapacitating episodes, only, whichever resulted in a higher evaluation. Diagnostic Code 6027 refers to cataracts (any type) and Diagnostic Code 6066 refers to impairment of visual acuity. See 38 C.F.R. § 4.79, Diagnostic Codes 6027, 6066. It is noted that 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. The applicable provisions for evaluating eye/vision disability are set out at 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.77, 4.78, 4.79 and 4.79. The General Rating Formula for Diagnostic Codes 6000 through 6009 are at 38 C.F.R. § 4.79. Diagnostic Code 6000 includes uveitis and iritis. The ratings are predicated on incapacitating episodes. 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. See Note, 38 C.F.R. § 4.79. Facts & Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a compensable evaluation prior to May 6, 2010, an evaluation in excess of 10 percent from May 6, 2010 to March 16, 2015, and a compensable evaluation from March 17, 2015 for eye (vision) disability. The evidence does not more nearly reflect the criteria for higher schedular evaluations. 38 C.F.R. § 4.7. Prior to May 6, 2010, the evidence does not more nearly reflect the schedular criteria for a compensable evaluation. The Veteran had no acute symptoms severe enough to warrant bed rest and treatment by a physician or other healthcare provider; his corrected distance vision was better than 20/40 bilaterally; and the more persuasive evidence shows that there was no visual field defect. VA treatment records shows that the Veteran had 20/40 corrected distance vision in bilaterally in 2010. A February 2010 optometry note indicated the Veteran had severely reduced visual field in both eyes, but the examiner noted that this was incongruous with the Veteran's mobility to include locating a chair without difficulty. Subsequent testing in April 2010 was performed-the VA optometry note included a visual field report (Goldman) that assessed the Veteran with full visual field in both eyes. See Medical Treatment Record - Government Facility (April 2010). Notably, a private treatment note reflects that, after the Veteran was told about being unable to drive due to vision impairment, his vision was rechecked and had improved to 20/40. See Medical Treatment Record - Non-Government Facility (October 2009). This evidence suggests that the Veteran has been intentionally misreporting his vision. As such, the Board finds more persuasive the evidence showing visual acuity of 20/40 or better. From May 6, 2010 to March 16, 2015, the evidence does not more nearly reflect the schedular criteria for an evaluation in excess of 10 percent. Report of VA eye exam dated May 6, 2010, reflects complaints of bilateral eye pain, worse in the morning, treated with artificial tears 2-4 times daily; frequent watery and red eyes; and occasional "white spots across eyes" that last for 4 minutes and is associated with pain, but resolves with cold compress. Corrected distance vision was better than 20/40 bilaterally. Visual field testing showed a slight restriction of the inferonasal visual field. Goldman testing showed an average contraction to 60 degrees in each eye. The medical findings for visual acuity correspond to a noncompensable evaluation-a higher evaluation requires visual acuity worse than 20/40 in one eye. See 38 C.F.R. § 4.79, Diagnostic Code 6064. Also, the medical findings for visual field impairment correspond to a 10 percent evaluation-a higher evaluation requires a remaining visual field of less than 46 degrees, which is not more nearly approximated here. See 38 C.F.R. § 4.79, Diagnostic Code 6080. During this period of time, there is no competent evidence of either compensably disabling visual acuity or that the Veteran had restricted visual field based on appropriate testing of less than 46 degrees. From March 17, 2015, the evidence does not more nearly reflect the schedular criteria for a compensable evaluation. The Veteran had no acute symptoms severe enough to warrant bed rest and treatment by a physician or other healthcare provider; his corrected distance vision was better than 20/40 bilaterally; and the more persuasive evidence shows that there was no visual field defect. Relevant treatment records and reports of VA eye examinations dated in March 2015 and October 2017 shows that the Veteran had no acute symptoms severe enough to warrant bed rest and treatment by a physician or other healthcare provider; his corrected distance vision has been better than 20/40 bilaterally; and there has been no loss of visual field shown by appropriate testing. The criteria for higher ratings than assigned are not met during the appeal period. The Board finds that higher or separate schedular ratings are not warranted under any other potentially applicable provision. 38 C.F.R. § 4.79, Diagnostic Codes 6000-6091. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. In this case, the medical findings are more probative of the severity of disability than the Veteran's statements because they were obtained after evaluation of the Veteran using appropriate testing by trained, skilled medical professionals. Although the Veteran may believe that he meets the criteria for higher disability ratings than assigned, the medical findings do not meet the schedular requirements for higher evaluations, as explained and discussed above. To the extent that the Veteran argues a history of flare ups support his claim of entitlement to increase, the Board finds that this recent argument is not supported by the medical evidence of record-which does not reflect complaints of "flare ups" manifested episodes of worsened visual acuity. Notably, a VA optometry note dated October 5, 2017, reflects that the Veteran had no ocular inflammation (uveitis), had no light sensitivity or acute eye pain, and he reported good vision in both eyes. See CAPRI (December 2017). In the absence of a documented history of flare ups (including on recent VA examination and treatment) and the considering the Veteran's apparent exaggeration of symptoms of visual impairment to medical providers (discussed above), the Board finds that the Veteran's report of flare ups of worsened visual acuity is not credible and has no probative value. Accordingly, the claim is denied. The Board finds that there is no basis to further "stage" the ratings as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER A compensable evaluation prior to May 6, 2010, an evaluation in excess of 10 percent from May 6, 2010 to March 16, 2015, and a compensable evaluation from March 17, 2015 for eye (vision) disability is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs