Citation Nr: 21063600 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 04-19 862 DATE: October 14, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for bilateral high irregular corneal astigmatism as residuals of keratoconus is denied. Entitlement to service connection for residuals of prostate cancer, to include radical prostatectomy (claimed as due to radiation exposure), is denied. FINDING OF FACT 1. The Veteran's bilateral high irregular corneal astigmatism as residuals of keratoconus manifests as impaired visual acuity to no worse than 20/70 bilaterally. 2. The preponderance of the evidence is against finding that the residuals of prostate cancer began during active service, or is otherwise related to an in-service injury, disease, or any in-service exposure to ionizing radiation. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 30 percent for bilateral high irregular corneal astigmatism as residuals of keratoconus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6035 and 6066. 2. The criteria for service connection for residuals of prostate cancer, to include radical prostatectomy, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1952 until his honorable discharge in March 1956 and from September 1962 until his honorable retirement in August 1974. Additionally, the Veteran served in the United States Navy Reserve from March 1956 until his honorable discharge (and return to active duty) in June 1956. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from the April 2002 and July 2007 rating decisions by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2007 and January 2011, the Veteran testified at Travel Board hearings before two separate Veterans Law Judges. As noted in the February 2017 Board remand, the Veteran was afforded an opportunity for a new hearing in correspondence sent in December 2016. In January 2017, the Veteran responded and indicated that he did not wish to appear at another Board hearing and to consider his case on the evidence of record. A transcript of both hearings have been associated with the record on appeal. During the January 2011 hearing, the Veterans Law Judge held the record open for 30 days to allow for the submission of additional evidence. In December 2007, December 2009, December 2011, and February 2017, the Board remanded the issue of entitlement to service connection for residuals of prostate cancer, to include radical prostatectomy (claimed as due to radiation exposure) to the RO for further development. Furthermore, in December 2011 and February 2017, the Board remanded the issue of entitlement to an increased disability rating for bilateral high irregular corneal astigmatism as residuals of keratoconus to the RO for further development. Specifically, the most recent Board remand directed the RO to obtain and associate all VA treatment records since July 2013 and private ophthalmologist that conducted cataract surgery on both of the Veteran's eyes in 2012 and 2013; to send a written request to the Naval Dosimetry Center in Bethesda, Maryland for information about the Veteran's radiation dose exposure during service, including, if available, a DD Form 1141; obtain an addendum opinion from the person who performed the May 2013 VA eye examination to clarify whether contact lenses are medically necessary for treatment of the Veteran's service-connected residuals of keratoconus; and to readjudicate the issues on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence 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. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 1. Entitlement to an initial disability rating in excess of 30 percent for bilateral high irregular corneal astigmatism as residuals of keratoconus The Veteran asserts that he is entitled to a disability rating in excess of 30 percent for bilateral high irregular corneal astigmatism as residuals of keratoconus. As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code). The Veteran is currently assigned a 30 percent disability rating under Diagnostic Code 6035-6066 for visual impairment of the eyes due to keratoconus. However, Diagnostic Code 6035 provides for evaluation of the Veteran's vision under the General Rating Formula for Diseases of the Eye and the additional Diagnostic Code of 6066 is not warranted. Therefore, the Board finds that a rating under Diagnostic Code 6035-6066 is not the appropriate Diagnostic Code to rate the Veteran's disability. The evidence does show that the Veteran has visual impairment due to keratoconus. As such, the Board finds that a rating under Diagnostic Code 6035 for keratoconus is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6035 throughout the period on appeal. The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 6035-6066 for 20 years and is afforded protection under 38 U.S.C. § 1159. However, the Board finds that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Therefore, the Board finds that a change in the Diagnostic Code does not violate the Veteran's rights under 38 U.S.C. § 1159. As noted above, the Veteran is rated under Diagnostic Code 6035. Diagnostic Code 6035 is rated under the General Rating Formula for Diseases of the Eye. During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (April 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 disability rating. Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate the disability 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. Prior to the May 13, 2018 changes, the criteria under the General Rating Formula for Diseases of the Eye 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. 38 C.F.R. § 4.79. 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 disability 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 disability 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 disability rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent disability 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. Id. From May 13, 2018; the criteria under the General Rating Formula for Diseases of the Eye 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. 38 C.F.R. § 4.79. Where documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition in the past 12 months, a 10 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 20 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 40 percent disability rating is warranted. Where documented incapacitating episodes requiring 7 or more treatment visits for an eye condition in the past 12 months, during the past 12 months, a 60 percent disability rating is warranted. The Board also notes that the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009. Specifically, prior to the May 2018 changes, the Note provided "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." However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009. Note: (1) provides "For the purposes of evaluation 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) provides "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) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091. The Board notes that the record does not reflect nor does the Veteran assert that he has had incapacitating episodes due to his bilateral high irregular corneal astigmatism as residuals of keratoconus under the previous nor current definitions of incapacitation. Therefore, the Board shall adjudicate the issue based upon visual impairment. Evaluations of defective vision range from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated. Id. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. A February 2007 VA examination reveals that the Veteran had burning or stinging bilaterally with reports periods of blurring or double vision. 02.17.2007 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT N/A 20/50 N/A 20/70 LEFT N/A 20/25- N/A 20/25 The February 2007 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 30 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/50 corrected distance in the right eye and 20/25- corrected distance in the left eye warrants a 10 percent disability rating. A May 2013 VA examination reveals that the Veteran had two hospitalizations in November 2012 and February 2013 due to his nonservice-connected bilateral cataracts. 05.10.2013 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 10/200 20/200 20/100 20/200 LEFT 20/100 20/40 or better 20/70 20/40 or better The May 2013 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 30 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/200 corrected distance in the right eye and 20/40 or better corrected distance in the left eye warrants a 20 percent disability rating. A January 2020 VA examination reveals that the Veteran had bilateral keratoconus, macular degeneration, pseudophakia, and ptosis of the right eye. 01.21.2020 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 10/200 20/70 20/200 20/50 LEFT 10/200 20/70 20/200 20/50 The January 2020 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 30 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/70 corrected distance bilaterally warrants a 30 percent disability rating. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 30 percent for a loss of visual acuity. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including malignant tumors, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 2. Entitlement to service connection for residuals of prostate cancer, to include radical prostatectomy (claimed as due to radiation exposure) is remanded. The Veteran asserts that his residuals of prostate cancer, to include radical prostatectomy is related to an in-service ionizing radiation exposure, specifically due to his participation in Operation WIGWAM in which an underwater nuclear detonation experiment was conducted approximately 500 miles southwest of San Diego, California in 1955. As a preliminary matter, the Board notes that the Veteran does have a current disability of residuals of prostate cancer, to include radical prostatectomy, participated in Operation WIGWAM in 1955 resulting in exposure to ionizing radiation of an external gamma dose of no more than 18 rem, external neutron dose of no more than 0.5 rem, an internal committed dose to the prostate (alpha) of no more than 4.5 rem, and an internal committed dose to the prostate (beta plus gamma) of no more than 2 rem. See November 2013 Defense Threat Reduction Agency and United States Strategic Command Center for Combatting Weapons of Mass Destruction correspondence. Therefore, in accordance with 38 C.F.R. § 3.311(a)(1), exposure at the highest level of the dose range will be presumed. The Board notes that there are no other dose estimates of record that would provide a higher dose estimate. Furthermore, the Board notes that the Veteran's service treatment records do not contain a DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation). Finally, during the August 2007 Board hearing, the Veteran testified that he was unsure if he was actually exposed to radiation but knew that after the detonation of the (nuclear device), the ocean raised up like a huge giant mountain. During the January 2011 Board hearing, the Veteran testified that he believed that he was exposed to radiation in approximately 1954 but was unsure if he was issued radiation exposure badges for Operation WIGWAM, but noted that he does not believe that he was issued a radiation badge on the date of the test. With the consideration of the above maximum radiation exposure determinations, in accordance with 38 C.F.R. § 3.311(a)(2)(iii), the RO referred the Veteran's file to the Director of Compensation Service in which reference to the February 20, 2014 memorandum from the Director, Post 9-11 Era Environmental Health Program (DEHP) which noted the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health to determine the likelihood that the Veteran's exposure to ionizing radiation caused his prostate cancer. The Board finds that the evidence of record does not support a finding that the Veteran's residuals of prostate cancer, to include radical prostatectomy, is related to active service. After considering several factors including but not limited to the Veteran's age at the time of exposure, the period of time between exposure and diagnosis, and the Veteran's smoking and family history, it was found that the probability that the Veteran's exposure to ionizing radiation during service was 23.61 percent likely to have caused his prostate cancer. Therefore the Board finds that it is less likely than not (less than 50 percent probability) that the Veteran's prostate cancer is due to his in-service ionizing radiation exposure. Accordingly, entitlement to service connection for residuals of prostate cancer, to include radical prostatectomy is denied. The Board has considered the Veteran's reports attributing his residuals of prostate cancer to in-service ionizing radiation exposure, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his residuals of prostate cancer. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.