Citation Nr: 21002103 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-11 932 DATE: January 12, 2021 ORDER Entitlement to a rating higher than 10 percent for corneal abrasion right eye from February 8, 2013 to June 14, 2014 is denied. Entitlement to a rating of 30 percent for corneal abrasion right eye from June 14, 2014 to August 12, 2019 is granted. Entitlement to a rating higher than 10 percent for corneal abrasion right eye since August 12, 2019 is denied. REMANDED Entitlement to service connection for right shoulder osteoarthritis is remanded. Entitlement to service connection for left shoulder osteoarthritis is remanded. FINDINGS OF FACT 1. From February 8, 2013 to June 14, 2014, corneal abrasion right eye was not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; two or three characteristics of disfigurement, nor did it cause impairment of visual acuity or visual fields, incapacitating episodes, or any other discernible symptoms. 2. From June 14, 2014 to August 12, 2019, corrected visual acuity in both eyes was 20/70. 3. Since August 12, 2019, corneal abrasion right eye is not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; two or three characteristics of disfigurement, nor does it cause impairment of visual acuity or visual fields, incapacitating episodes, or any other discernible symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for corneal abrasion right eye from February 8, 2013 to June 14, 2014 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.7, 4.75, 4.76, 4.77, 4.79, Diagnostic Codes (DCs) 6009-7800 (2019). 2. The criteria for a rating of 30 percent for corneal abrasion right eye from June 14, 2014 to August 12, 2019 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.7, 4.75, 4.76, 4.77, 4.79, DCs 6009-7800 (2019). 3. The criteria for a rating higher than 10 percent for corneal abrasion right eye since August 12, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.7, 4.75, 4.76, 4.77, 4.79, DCs 6009-7800 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1950 to December 1952. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38U.S.C. §1155; 38C.F.R. §§4.1, 4.2, 4.10. 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. 38C.F.R. §4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals the denial of a rating higher than 10 percent for corneal abrasion right eye. His disability is rated under DCs 6009-7800. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. Here, the Veteran’s disability is rated as analogous to unhealed eye injury (DC 6009) and disfiguring scars of the head or face (DC 7800). During the applicable period on 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 the former criteria (2008), DC 6009 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula indicates that, 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. Impairment of visual acuity is rated under Table V and DCs 6061-6079. 38 C.F.R. § 4.83a. A 10 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/50 and vision in the other eye is correctable to 20/40; (2) when vision in both eyes is correctable to 20/50; (3) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or, (4) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. A 20 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/50; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/40; or, (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/40. A 30 percent rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; or (7) when vision in one eye is limited to light perception only and the vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, DCs 6077, 6078. Under the revised criteria (2018), DC 6009 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. §§ 4.75-4.78 and to § 4.79, DCs 6061-6091. Under DC 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800. A 30 percent rating is warranted when there is 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, or lips), or; with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, DC 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id. at Note 3. Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under DC 7800. Id. at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. at Note 5. In February 2013, the Veteran expressed that his eyes were getting dimmer and his eyesight was weakening. During the June 2013 VA examination, it was noted that the Veteran did not have an eye condition. The Veteran reported that he had distance blur with his glasses. He denied other ocular problems. Examination for the right eye revealed there was uncorrected distance 20/70, uncorrected near 20/200, corrected distance 20/40 or better and corrected near 20/40 better. His pupils were round and reflective to light. The Veteran had no corneal irregularity that resulted in severe irregular stigmatism nor did he have diplopia (double vision). The right cornea, iris and anterior chamber were normal. Internal eye examination was also normal bilaterally. Visual field testing was not performed. There was no contraction of a visual field or loss of a visual field. The Veteran was noted to have corneal conditions and cataract/other lens conditions. There was no decrease in visual acuity or other visual impairment. There was scarring of the right eye which included surface contour of the scar elevated or depressed on palpation. Examination disclosed there was faint stromal scar of the cornea which appeared longstanding and not affecting vision. During the 12 months prior to examination, the Veteran did not have any incapacitating episodes attributable to any eye condition. It was further noted that his eye condition did not impact his ability to work. Outpatient treatment record in January 2014 disclosed there was no redness, pain or changes in vision. The June 2014 VA examination disclosed diagnoses of corneal abrasion left eye (OD), orbital fat prolapse + repair and medial canthus papilloma. Examination for the right eye revealed there was uncorrected distance 20/70, uncorrected near 20/100, corrected distance 20/70 and corrected near 20/40 better. The pupils were round and reactive to light, and there was no loss, light perception only, extremely poor vision or blindness of either eye. The Veteran did not have a corneal irregularity that resulted in severe irregular astigmatism and there was no diplopia (double vision). The right cornea had an off axis scar but the iris and anterior chamber were normal. Internal eye examination (fundus) was also normal bilaterally. Examination also disclosed diagnoses of corneal conditions and cataract/other lens conditions. It was noted that the eye condition identified did not cause scarring or disfigurement. During the 12 months prior to examination, the Veteran did not have any incapacitating episodes attributable to any eye condition. It was further noted that his eye condition did not impact his ability to work. The examiner stated that the Veteran had a small corneal scar that may be from his corneal abrasion, however; the scar is off-axis and not visually significant. The Veteran also had mixed visually significant cataracts OU. The Veteran had a cataract extraction with posterior chamber intraocular lens implantation, right eye, in August 2014. During his April 2019 Board hearing, the Veteran reported having double vision. The Veteran was afforded another VA examination in August 2019. The Veteran was diagnosed with corneal Scars OU; OD > OS and pseudophakia OU. Examination for the right eye revealed there was uncorrected distance 20/70, uncorrected near 20/50, corrected distance 20/40 and corrected near 20/40. The Veteran did not have a corneal irregularity that resulted in severe irregular astigmatism and there was no showing of diplopia (double vision). He had one “small scar located inferior temporal to the visual axis and another small scar located inferior nasal to the visual axis scar located superior to the visual axis.” The right iris and anterior chamber were normal. Internal eye examination was also normal bilaterally. Examination also disclosed diagnoses of corneal conditions and cataract/other lens conditions. There was no decrease in visual acuity or other visual impairment. It was noted that the eye condition identified did not cause scarring or disfigurement. During the 12 months prior to examination, the Veteran did not have any incapacitating episodes attributable to any eye condition. It was further noted that his eye condition did not impact his ability to work. Initially, the Board finds against a higher rating under the criteria of DC 6009 based on incapacitating episodes. To that end, there is no indication in the record that the Veteran has had incapacitating episodes related to his corneal abrasion right eye. The 2018 changes under the General Rating Formal for Diseases of the Eye included redefining incapacitating episodes to include the more lenient “an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes.” In this case, however, there is no indication that the Veteran experiences incapacitating episodes of any sort, related to his right eye disability. The record does not reflect, and the Veteran has not contended, that prior to May 13, 2018 he had been prescribed bedrest by his physician or a healthcare provider for his eyes. Further, the evidence does not reflect that as of May 13, 2018, the Veteran has required at least three treatment visits for his eye condition. Therefore, a higher rating based on incapacitating episodes under the General Rating Formal for Diseases of the Eye is not warranted. Regarding a higher rating due to visual field or muscle function, the Board notes that the VA examinations and outpatient treatment records show that the Veteran does not have a visual field deficit, diplopia, or other muscle function manifestations related to his corneal scars. To the extent that the Veteran has reported double vision, the Board notes that the objective evidence has continually disclosed no objective evidence of diplopia (double vision). The Board acknowledges the Veteran’s lay description of double vision but finds that the objective medical testing does not reflect that the Veteran has diplopia. The Board finds that the medical evidence in this case, based on objective testing, is more probative than the Veteran’s lay statements. The Veteran is competent to report the symptoms he experiences, but a determination regarding diplopia is a precise and measurable manifestation of the service-connected disability and the medical evidence is more probative regarding whether it is present in this case. As such, a higher rating related to loss of visual field or muscle function is not warranted. Regarding a higher rating due to visual acuity, the objective evidence indicates that the disability does not result in decreased visual acuity from February 8, 2013 to June 14, 2014. Rather, the June 2013 VA examiner measured corrected distance 20/40 or better and corrected near 20/40 better bilaterally. When visual acuity is 20/40 in both eyes, a 0 percent rating is warranted under Diagnostic Code 6066. As such, a rating higher than 10 percent is not warranted due to impairment of visual acuity from February 8, 2013 to June 14, 2014. The Board notes, however, that from June 14, 2014 to August 12, 2019, corrected distance at 20/70 bilaterally is shown. The June 2014 VA examiner measured corrected distance at 20/70 bilaterally and 20/40 corrected near bilaterally. Under DC 6066, a 30 percent disability rating is warranted for impairment of central visual acuity when corrected visual acuity in both eyes is 20/70. As such is shown during this period of time, the Board finds that a 30 percent rating is warranted from June 14, 2014 to August 12, 2019. Since August 12, 2019, the evidence shows corrected distance of 20/40 or better bilaterally. The August 2019 VA examiner measured corrected distance 20/40 or better and corrected near 20/40 better bilaterally. As visual acuity is 20/40 in both eyes which results in no more than a 0 percent rating under Diagnostic Code 6066, a rating higher than 10 percent due to impairment of visual acuity since August 12, 2019 must be denied. In making this determination, the Board notes that the Veteran underwent cataract extraction with posterior chamber intraocular lens implantation of the right eye in August 2014 and for the left eye in November 2014. Thus, the evidence shows that his corrected distance improved when comparing the June 2014 and August 2019 VA examinations. With regard to scarring, the Board finds against a higher rating for any period of time for corneal abrasion right eye under DC 7800. To that end, there is no showing of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features nor is there a showing of two or more characteristics of disfigurement. At most, the Veteran is shown to have one characteristics of disfigurement, i.e. surface contour of the scar that is elevated or depressed on palpation. There is no showing of visible or palpable tissue loss. The Board also notes that the scar is not shown to be unstable or painful so as to warrant consideration of DC 7804. Accordingly, a higher rating is not warranted under DCs 7800-7804. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability other than stated. Accordingly, a rating higher than 10 percent for corneal abrasion right eye from February 8, 2013 to June 14, 2014 is denied, a rating of 30 percent, but no higher, for corneal abrasion right eye from June 14, 2014 to August 12, 2019 is granted, and a rating higher than 10 percent thereafter is denied. The Board also notes that an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. The VA examinations have consistently found that the Veteran’s eye condition did not impact his ability to work and the Veteran has not alleged so. Thus, the Board concludes that the issue of entitlement to TDIU has not been reasonably raised by the record. Lastly, the Board is mindful that the June 2014 VA examiner rendered a diagnosis of dry eye syndrome resulting in intermittent pain and redness in both eyes (OU). Although the Veteran’s dry eye syndrome was not directly the result of his corneal abrasion injury OD, the examiner found that it was at least as likely as not that his pain and redness OD is exacerbated by the fact that he had this injury. To the extent that a claim has been raised, in May 2020 the RO found no evidence to grant a separate evaluation for dry eye syndrome. The Veteran has not expressed disagreement with this decision. REASONS FOR REMAND The Veteran appeals the denial of service connection for a right and left shoulder disability. In a June 2019 decision, the Board denied the claim for service connection. The Veteran appealed the decision to the Court. In June 2020, the Court granted a joint motion for remand (JMR) which vacated and remanded the June 2019 Board decision that denied service connection for a left and right shoulder disability. The Court found that vacatur and remand were warranted because the Board erred by failing to satisfy its duty to assist because the January 2014 VA examination was inadequate for rating purposes and that another examination was warranted. In accordance with the JMR, a remand is warranted for further development on this claim. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s right and left shoulder disability. Access to the electronic claim files must be made available to the examiner for review. If, after review of the electronic file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right and/or left shoulder disabilities are related to service. In so doing, the examiner must specifically address: (1) the August 1951 service treatment record showing treatment for multiple issues to include pain in the shoulders, and the April1952 treatment records showing treatment for pain in the right shoulder and bilateral shoulders, (2) the post service treatment record in November 1954 showing treatment for complaints of pain in the shoulders, low back, and knees of three years duration with an initial impression of osteoarthritis, (3) the April 1975 complaint of aches in “all joints of the body,” and (4) the Veteran’s complaints of pain in all joints since service. The examiner should specifically explain why or why not that the documented complaints in 1952 and 1954 credibly reporting a history of pain since service represented evidence of the onset of a chronic disability since service. A complete, well-reasoned rationale must be provided for any opinion offered. The examiner must reconcile any opinion with the lay statements and testimony of the Veteran. (continued on the next page) 2. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.