Citation Nr: 21061985 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-01 231 DATE: October 6, 2021 ORDER Entitlement to an initial compensable disability rating for left eye corneal scar, claimed as left eye droop, is denied. FINDING OF FACT For the entire period of appeal, the Veteran's left eye corneal scar, claimed as left eye droop does not result in irregular, duplicated, enlarged, or diminished image; and there is no visual acuity impairment, visual field impairment, or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial compensable disability rating for left eye corneal scar, claimed as left eye droop, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6099-6011. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1979 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision. The Veteran's claim for an increased rating for service-connected left eye corneal scar, claimed as left eye droop was remanded by the Board in November 2017, June 2019, and November 2020. Entitlement to an initial compensable disability rating for left eye corneal scar, claimed as left eye droop, is denied. The Veteran's left eye corneal scar, claimed as left eye droop is rated as noncompensable under 38 C.F.R. § 4.79, Diagnostic Code 6099-6011, for retinal scars, atrophy, or irregularities. 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 assigned rating; the additional code is shown after the hyphen. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. Here, the hyphenated diagnostic code indicates that the Veteran's left eye disability is rated as analogous to a disease of the eye (Diagnostic Code 6099) under the criteria for retinal scars, atrophy, or irregularities (Diagnostic Code 6011). 38 C.F.R. § 4.79. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 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, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher rating. Under the former criteria, the alternative evaluation is based on visual impairment due to retinal scars, atrophy, or irregularities. Under the revised criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. 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 impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. 38 C.F.R. §§ 4.75(a), (b). Examinations of visual field or muscle function will be conducted only when medically indicated. 38 C.F.R. §§ 4.75(a), (b). Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Subject to the provisions of § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. §§ 4.75(c), (d). The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under Diagnostic Code 7800). 38 C.F.R. § 4.75(d). Under 38 C.F.R. § 3.383(a), compensation is payable for the combination of service-connected and nonservice-connected disabilities, provided the nonservice-connected disability is not the result of the veteran's own willful misconduct. As pertinent to eye disabilities, this is allowed where (i) the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or (ii) the peripheral field of vision for each eye is 20 degrees or less. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. 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, Diagnostic Codes 6061-6091. To evaluate the Veteran's left eye corneal scar, claimed as left eye droop, he was afforded several examinations. An October 2012 VA Eye Compensation and Pension Examination states that for the Veteran's left eye, he does not have any general symptoms, but does have blurring. On physical examination in October 2012, the Veteran did not have diplopia. He had normal funduscopic examination findings. He did not have visual acuity worse than 5/200. A corneal disorder that results in severe irregular astigmatism that can be improved more by contact lenses than by eyeglass lenses was not present. There was not a difference equal to two or more scheduled steps or lines of visual acuity between near and distance corrected vision for either eye, with the near vision being worse. There were not more than three diopters of spherical correction between the eyes. The Veteran had corrected visual acuity at distance of 20/20 -2 for his left eye and 20/20 -1 +1 for his right eye. The examination report provides that there is a 3-to-4-millimeter scar that is outside of the Veteran's optical axis. The Veteran's eye injury has healed. A July 2018 Eye Conditions Disability Benefits Questionnaire states that the Veteran has diagnoses of minor corneal scar, left eye and dry eye. Concerning visual acuity, the Veteran has 20/20 or better vision bilaterally on corrected distance vision. There was not a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran's pupils were round and reactive to light and an afferent pupillary defect was not present. He did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that resulted in severe irregular astigmatism. He did not have diplopia. The July 2018 examination report states that the Veteran has nasal and temporal pingueculas with overlying Lissamine Geen staining bilaterally and left eye 4.5-millimeter diagonal scar outside the visual axis. The Veteran's fundus was normal bilaterally. The examination report provides that the Veteran has a documented visual field defect, but does not have contraction of a visual field, loss of visual field, scotoma, or blindness based upon visual field loss. The Veteran has lacrimal system conditions and cornea/conjunctiva conditions according to the July 2018 examination report. He has bilateral dry eye syndrome that he treats with over-the-counter artificial tear drops and there is no decrease in visual acuity or other visual impairment as a result. He has bilateral dry eye affecting his conjunctiva tissue mostly and there is no decrease in visual acuity or other visual impairment as a result. He has not had any incapacitating episodes attributable to his eye condition and it has not impacted his ability to work. A March 2021 Eye Conditions Disability Benefits Questionnaire indicates that the Veteran has diagnoses of left eye corneal scar and bilateral pinguecula. Concerning medical history, the Veteran's left eye drooped for a few weeks in 2020 but has sinc been the same as his right eye. He wears contact lenses with reading eyeglasses over them as needed and reports good vision with contacts and no ocular discomfort. He works on a computer most of the day at work and requires over-the-counter reading glasses to see the monitor, but reports no limitations related to his vision. The March 2021 examination report provides that the Veteran's corrected distance vision is 20/20 or better, bilaterally. There was not a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran's pupils were round and reactive to light and an afferent pupillary defect was not present. He did not have anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He did not have a corneal irregularity that resulted in severe irregular astigmatism. He did not have diplopia. The March 2021 examination report demonstrates that the Veteran has pinguecula, nasal and temporal, bilaterally and left eye peripheral corneal scar, inferior, 4-millimeter, visual axis not involved. The Veteran's fundus was normal bilaterally. He does not have a documented visual field defect. His left eye peripheral corneal scar and pinguecula, nasal and temporal do not result in decrease of visual acuity or other visual impairment. He does not have scarring or disfigurement attributable to any eye condition. He has not had any incapacitating episodes attributable to his eye condition and it has not impacted his ability to work. The Veteran's private treatment records also contain evidence concerning the severity of his left eye corneal scar, claimed as left eye droop. An October 2012 private treatment record from University of Iowa Hospitals and Clinics states that the Veteran has more difficulty seeing out of his left eye and occasionally has headaches. His corrected distance vision was 20/20-2, bilaterally. A January 2013 private treatment record indicates that the Veteran has left eye swelling and that he has associated symptoms of fatigue, nasal congestion, and sinus pressure. A January 2020 VA Primary Care Outpatient Note states that the Veteran does not have vision problems, eye movement symptoms, irritation of the eyes, pain in or around the eyes, watery eyes, or red eyes. The Veteran stated that he has a left eye droop that was caused by his in-service eye injury, related eye treatment, and/or symptoms related to his left eye corneal scar. See March 2013 Notice of Disagreement ; see also January 2014 Written Correspondence. Because the Veteran is not shown to have a medical background or expertise, he is considered a layperson in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The Board must determine on a case-by-case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. See Davidson, 581 F.3d at 1316 (holding that it was error to reject categorically lay statements on the issue of medical nexus, or to make a categorical finding that a medical opinion was required); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). The Board finds that the Veteran is competent to report his left eye symptomatology as it is capable of lay observation within a person's first-hand experience. Additionally, the Veteran is credible in his report of his left eye symptomatology. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). However, because the record does not indicate the Veteran is qualified to opine concerning complex principles in the field of medicine, his unsupported opinion is not competent evidence on the issue of the etiology of an eye disability, and thus lacks probative value. See Layno, 6 Vet. App. at 470-71. Related, the Veteran's claims folder contains a March 2021 medical opinion that states that the Veteran's left eye droop (ptosis) occurred in 2010 as a result of a partial third nerve palsy and was unrelated to the event that caused his left corneal scar in 1982 during his active service. The Veteran's lid ptosis was temporary and resolved within a few weeks, which has been confirmed with multiple examinations. The medical opinion concludes that the Veteran's partial third nerve palsy resulting in a temporary lid ptosis was unrelated to his in-service injury that caused his corneal scar, was not otherwise caused by an in-service injury, and was not incurred during his time in service. Considering the above evidence, the Board finds that a compensable rating is not warranted at any point during the period of appeal. First, the evidence has not demonstrated that the Veteran's left eye corneal scar, claimed as left eye droop has been shown to have symptoms of seeing irregular, duplicated, enlarged, or diminished images to warrant a 10 percent disability rating under Diagnostic Code 6011. Further, there are no findings of impaired visual acuity, impaired visual field, or incapacitating episodes during the period of appeal to warrant a compensable disability rating under the versions of Diagnostic Code 6011 that have been in force during the period of appeal. The Board notes that the Veteran reported receiving private medical treatment for his left eye corneal scar, claimed as left eye droop. In December 2019, the Veteran submitted a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA) identifying such treatment and authorizing VA to request these records. VA did not obtain these private treatment records within one year of completion and the authorization became stale. The Board's November 2020 remand directed the Agency of Original Jurisdiction to review the authorization submitted by the Veteran in December 2019, seek updated authorizations if necessary, and request treatment records as appropriate. Most recently, the Veteran was provided correspondence dated November 23, 2020, prompting him to complete authorizations for VA to obtain his private treatment records. A VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA) and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA) were enclosed in the letter to the Veteran. The Veteran did not respond. The Board notes that thus far, the Veteran's failure to submit private treatment records or authorize VA to obtain private treatment records in response to the November 2020 correspondence has precluded the consideration of potentially favorable evidence because these records could contain evidence concerning the severity of his left eye corneal scar, claimed as left eye droop. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not always a one-way street, or a blind alley, and that a veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting the claim). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. See id. As a result, the Board must adjudicate the claim based upon the evidence that is currently of record. The Board has considered whether a higher disability rating or any additional disability ratings are warranted under an alternative diagnostic code, but as discussed above, finds that there is no indication that the Veteran had any compensable symptoms or diagnoses to warrant any higher or additional disability ratings. As such, an initial compensable disability rating for the Veteran's left eye corneal scar, claimed as left eye droop is not warranted for any period of the appeal. Because the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. §§ 1155, 5107; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.