Citation Nr: 20048522 Decision Date: 07/20/20 Archive Date: 07/20/20 DOCKET NO. 20-00 296 DATE: July 20, 2020 ORDER Entitlement to a compensable rating for bilateral retinal pigment epithelial detachments (hereinafter “bilateral eye disability”) is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for right nephrectomy with residuals of renal insufficiency (hereinafter “right kidney disability”), is remanded. Entitlement to a rating in excess of 30 percent for actinic keratoses is remanded. FINDING OF FACT The Veteran’s bilateral eye disability does not manifest corrected visual acuity of 20/50 in one eye and 20/40 in the other eye, nor is there evidence of impairment of muscle function, field defect, or incapacitating episodes. CONCLUSION OF LAW The criteria for a compensable rating for bilateral eye disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.75-4.79, DCs 6099-6066 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1960 to February 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2019). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a compensable rating for bilateral eye disability The Veteran contends that his service-connected bilateral eye disability warrants a higher rating. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual field or muscle function will be conducted only when medically indicated. 38 C.F.R. § 4.75(b). An incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes, such as systemic immunosuppressants or biologic agents, intravitreal or periocular injections, laser treatments, or other surgical interventions. 38 C.F.R. § 4.79 at Notes 1 and 2. A 10 percent rating is warranted for evidence of documented incapacitating episodes requiring at least 1 but less than 3 treatments for an eye condition during the past 12 months. A 20 percent rating is warranted for evidence of documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted for evidence of documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months. A 60 percent rating, the highest schedular rating allowed, is warranted for evidence of documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months. The Veteran’s bilateral eye disability is currently rated as noncompensable under DCs 6099-6079, indicating that it was rated as analogous to a disease of the eye (DC 6099) under former criteria for impairment of central visual acuity (DC 6079, in force prior to December 10, 2008). Prior to December 10, 2008, DC 6079 provided that when visual acuity in one eye was 20/50 and visual acuity in the other eye was 20/40, a 10 percent rating was warranted. When visual acuity in both eyes was 20/40, a noncompensable rating was warranted. Effective December 10, 2008, DC 6079 was removed from the regulations. DC 6066 now provides ratings where vision in one eye (the poorer eye) is 10/200 or better. 38 C.F.R. § 4.79. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under both the former and revised criteria for DC 6066, where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in one eye (the poorer eye) is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. 38 C.F.R. § 4.79. Where the visual acuity in one eye (the poorer eye) is 20/70, a 10 percent rating is warranted where vision in the other eye is 20/40. A 20 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/70. 38 C.F.R. § 4.79. Where the visual acuity in one eye (the poorer eye) is 20/100, a 10 percent rating is warranted where vision in the other eye is 20/40. A 20 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/70. A 50 percent rating is warranted where vision in the other eye is also 20/100. 38 C.F.R. § 4.79. Where visual acuity in one eye (the poorer eye) is 20/200, a 20 percent rating is warranted where vision in the other eye is 20/40. A 30 percent rating is warranted where vision in the other eye is 20/50. A 40 percent rating is warranted where vision in the other eye is 20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is also 20/200. 38 C.F.R. § 4.79. Where visual acuity in one eye (the poorer eye) is 15/200, a 20 percent rating is warranted where vision in the other eye is 20/40. A 30 percent rating is warranted where vision in the other eye is 20/50. A 40 percent rating is warranted where vision in the other eye is 20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is 20/200. An 80 percent rating is warranted where vision in the other eye is also 15/200. 38 C.F.R. § 4.79. Where visual acuity in one eye (the poorer eye) is 10/200, a 30 percent rating is warranted where vision in the other eye is 20/40. A 40 percent rating is warranted where vision in the other eye is 20/50. A 50 percent rating is warranted where vision in the other eye is 20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is 20/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 90 percent rating is warranted where vision in the other eye is also 10/200. 38 C.F.R. § 4.79. Turning to the evidence of record, during the Veteran’s January 2018 VA examination, corrected distance vision measured 20/40 in the right eye and 20/40 in the left eye. The examiner indicated that there was no evidence of visual field defect, impairment of muscle function, to include diplopia, or incapacitating episodes. Post-treatment records for the period on appeal are silent for evidence of impairment of muscle function, to include diplopia, or incapacitating episodes. Based on a review of the evidence of record, the Board finds that a compensable rating for bilateral eye disability is not warranted. The probative evidence of record, to include the Veteran’s 2018 VA examination, as well as his post-service VA and private treatment records, do not reflect corrected distance vision of 20/50 in one eye and 20/40 in the other eye. On the contrary, the medical evidence reflects corrected distance vision measuring no more than 20/40 in each eye, which equates to a noncompensable rating based on impairment of visual acuity. The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code, but finds that there is no indication that the Veteran has a visual field defect, impairment of muscle function, or incapacitating episodes to warrant any higher or additional ratings. Here, the Veteran’s bilateral eye disability is manifested by corrected distance vision of 20/40 in the right eye and 20/40 in the left eye, which warrants a noncompensable rating under DC 6066. As the Veteran’s bilateral eye disability is not productive of any visual impairment or incapacitating episodes, the currently assigned noncompensable rating for bilateral eye disability under DC 6066 is appropriate. The Board acknowledges the Veteran’s assertions that his bilateral eye disability is more severe than the assigned disability rating reflects.  The Veteran is competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the competent medical evidence offering specific specialized determinations relevant to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran’s bilateral eye disability.  In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for bilateral eye disability, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection, to include on a secondary basis, for right kidney disability is remanded. The Veteran asserts that his right kidney disability is caused or aggravated by his service-connected kidney stones. The Veteran was afforded a VA examination in January 2018. The examiner indicated that the Veteran’s right kidney disability was not caused by service or any service-connected disability, stating that the Veteran’s nephrectomy was due to a suspicious kidney mass. The Board finds the January 2018 VA examiner’s opinion to be inadequate, as it is conclusory in nature and lacks adequate supporting rationale. Here, the examiner’s opinion did not address whether the Veteran’s service-connected kidney stones caused or aggravated his right kidney disability, to include a suspicious kidney mass, ultimately resulting in the right kidney’s removal and further renal insufficiency. On remand, an addendum opinion should be obtained with complete rationale as to whether the Veteran’s right kidney disability is caused or aggravated by his service-connected kidney stones. 2. Entitlement to a rating in excess of 30 percent for actinic keratoses is remanded. In his December 2019 VA Form 9, the Veteran indicated that his service-connected actinic keratoses had worsened since her last VA examination in March 2018. Specifically, he asserts that his actinic keratoses affects 60 percent of his entire body. The Board notes that an April 2018 VA addendum opinion indicated that that Veteran’s actinic keratoses was among several skin disorders affecting his total body. However, the remaining skin disorders, to include malignant melanoma and squamous cell carcinoma, are not service-connected. As it is unclear from the April 2018 VA opinion how much of the Veteran’s body is affected solely by his actinic keratoses, and the Veteran has indicated a worsening in this skin disability, a new examination is needed to properly evaluate the current severity of his service-connected actinic keratoses. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of his service-connected actinic keratoses. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. The examiner is asked to specify, if possible, what percentage of the Veteran’s total body area and total exposed body area is affected solely by his service-connected actinic keratoses. 2. Send the Veteran’s claims file to an appropriate medical professional to obtain an addendum opinion regarding the etiology of the Veteran’s right kidney disability, to include right kidney mass resulting in nephrectomy with residuals of renal insufficiency. The Veteran’s electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right kidney disability is proximately due to or caused by a service-connected disability, to include kidney stones? b) Is at least as likely as not (a 50 percent probability or greater) that the Veteran’s right kidney disability has been aggravated (made worse beyond its natural progression) by a service-connected disability, to include kidney stones? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the requested opinions cannot be provided without a new examination, one should be scheduled. 3. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claims. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.