Citation Nr: 21008297 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 13-01 806 DATE: February 16, 2021 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a bilateral foot disability is granted. Entitlement to an evaluation in excess of 10 percent from July 28, 2016 to October 26, 2020 and a compensable rating after October 26, 2020 for left eye pterygium is denied. FINDINGS OF FACT 1. The evidence is evenly balanced as to whether the Veteran has experienced the right knee pain related to the right knee patellofemoral pain syndrome since his separation from service. 2. The evidence is evenly balanced as to whether the Veteran has experienced bilateral foot pain related to current bilateral plantar fasciitis and hallux valgus since his separation from service. 3. For the entire appeal period, the Veteran’s left eye pterygium was not associated with active conjunctivitis and did not result in any incapacitating episode, visual acuity loss, or muscle dysfunction; he did not have a visual field defect with remaining field of 45 degrees or worse. 4. For the period after October 26, 2020, the Veteran’s left eye pterygium did not result in a visual field defect worse than 60 degrees. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in favor of the Veteran, the criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With resolution of reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an evaluation in excess of 10 percent from July 28, 2016 to October 26, 2020 and a compensable evaluation from October 26, 2020, for left eye pterygium have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.79, Diagnostic Codes 6018, 6034, 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 to June 2000. The Board previously remanded the issue for further development in May 2016, February 2018, and June 2020. The case has now been returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a 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 entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service 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, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Right knee disability The Veteran contends that he has a right knee disability due to wear and tear that he incurred while in service. His left knee disability is service connected, based on the August 2012 opinion that it is at least as likely as not related to service because he was treated for a left knee condition in service; his service treatment record reflects a left knee injury in April 1991. It is noted that the Veteran reported complaints of bilateral knee pain shortly after separation from service. When seen in 2009 for other disorders, he reported the onset of pain in both knees dating from service. He also reported that he managed with medication and had not required significant treatment. A July 2016 VA examination reflects a current diagnosis of the right patellofemoral pain syndrome. A review of his service treatment records indicate that while he reported an injury to his left knee and sought treatment for the condition, the Veteran had never sought treatment or complained about his right knee. His retirement examination, signed by the Veteran in February 2000, does not reflect any knee problems; neither does the April 2001 instructor examination. A review of the post-service records indicates that the Veteran was first diagnosed with the right knee patellofemoral syndrome in a September 2009 VA examination. At the examination, the Veteran reported having been diagnosed with right knee sprain, which had existed for over 25 years. It appears that the Veteran attributed the condition to strenuous military exercise and training. He reported having daily pain and problems standing on a concrete work floor for 8 hours a day. The range of motion testing showed the flexion to 90 degrees with pain with no additional degree of limitation. With repetitive use, the right knee exhibited pain, fatigue, weakness, and lack of endurance. Incoordination after repetitive use was noted. Moreover, during a September 2020 VA examination, the Veteran reported that his right knee started hurting years after the left knee injury in service. He stated that he had worked at the USPS for the past 19 years and had to stand and walk on concrete floors for 50 to 60 hours a week and he reported this had made his knees worse. At this examination, he was still diagnosed with the right knee patellofemoral pain syndrome; he reported not being able to walk or stand for prolonged periods of time due to the right and left knee patellofemoral pain syndrome. Given his complaints recorded shortly after service, the history in 2009, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is evenly balanced as to whether the Veteran’s right knee disability began in service. He had the left knee injury in 1991 and he reported that the right knee pain began years after the left knee injury. In light of the fact that he served from 1978 to 2000, the onset of the right knee pain “years after” the 1991 left knee injury cannot be conclusively said to have occurred after separation. Given the relatively mild symptomatology, without much progression of the disability over the years, the Veteran’s report of continuity of the right knee pain and the fact that he did not seek treatment are not inconsistent. Therefore, with resolution of any reasonable doubt in the Veteran’s favor, the claim is granted. 2. Bilateral foot disability The Veteran contends that his bilateral foot disability was due to an in-service injury occurred during strenuous military activity lasting for 10 to 12 hours per day, during which he was required to stand and walk and being on his feet all day. See September 2009 VA Examination Report. Additionally, as with the knees, the Veteran complained of bilateral foot problems shortly after his separation from service. Again, the history is that he treated with medication, did not require significant other treatment, and the feet while painful did not cause significant work impairment. He is currently diagnosed with bilateral plantar fasciitis and hallux valgus. See September 2020 VA Examination Report. At a July 2016 VA examination, the Veteran reported that the onset of the foot symptoms was 1980’s. The Veteran reported that the foot condition began with residuals of bilateral foot pain and aching got aggravated. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence is evenly balanced as to whether the Veteran’s bilateral foot disability began in service. His report of the onset of foot pain in service is credible in light of the fact that he served from 1978 to 2000. Given the relatively mild symptomatology, without much progression of the disability over the years, the Veteran’s report of continuity of bilateral foot pain and the fact that he did not seek treatment for a long period of time are not inconsistent. Therefore, with resolution of any reasonable doubt in the Veteran’s favor, the claim is granted. Increased Rating 3. Entitlement to an evaluation in excess of 10 percent from July 28, 2016 to October 26, 2020 and a compensable rating after October 26, 2020 for left eye pterygium The Veteran’s left eye pterygium is evaluated under Diagnostic Codes 6034, 6080. See 38 C.F.R. § 4.79. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities 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. 38 U.S.C. § 1155 ; 38 C.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 to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 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 considering 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. The former criteria for Diagnostic Code 6034 instructed to evaluate based on visual impairment, disfigurement (Diagnostic Code 7800), conjunctivitis (Diagnostic Code 6018), etc. depending on the particular findings. The revised criteria for Diagnostic Code 6034 instruct to evaluate based on the General Rating Formula for Diseases of the Eye, disfigurement (Diagnostic Code 7800), conjunctivitis (Diagnostic Code 6018), etc. depending on the particular findings, with all ratings to be combined pursuant to 38 C.F.R. § 4.25. The General Rating Formula for Diseases of the Eye instructs to rate based on incapacitating episodes or visual impairment, whichever would afford a higher rating. Thus, the change to the rating criteria effectively just added consideration of incapacitating episodes because visual impairment was to be considered in the former criteria. Regarding combining ratings under 38 C.F.R. § 4.25, this language appears to clarify how the rating criteria should be applied and does not represent a substantive change; separate disabling effects should have been combined pursuant to 38 C.F.R. § 4.25 under the former criteria. For a compensable rating based on incapacitating episodes under the General Rating Formal for Diseases of the Eye, a veteran must have required at least one but less than 3 treatment visits for his eye condition during the past 12 months. 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. 38 C.F.R. § 4.79, Note (1) (2018). 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. 38 C.F.R. § 4.79 (2018). Here, the Veteran has not contended, and the record does not suggest, that the Veteran had undergone any treatment visits for his eye condition within 12 months of the effective date of the change in the rating criteria. Therefore, a compensable rating is not warranted based on incapacitating episodes. 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). 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. 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. Id. § 4.75(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). 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. 38 C.F.R. § 4.76 (c). Here, the Veteran’s corrected distance vision has consistently been measures to be 20/40, 20/20, or better for the entire appeal period. Thus, a compensable rating is not available for visual acuity loss. Evaluations of visual impairment of muscle function is based on the degree of diplopia. 38 C.F.R. § 4.78 (a). Here, for the entire appeal period, the Veteran has not complained of diplopia and treatment records do not note any diplopia. Therefore, a compensable rating is not warranted for impairment of muscle function. Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.77. Diagnostic Code 6080, 38 C.F.R. § 4.79, provides the following: Where there is a remaining field of 46 to 60 degrees, a 10 percent rating is warranted for either bilateral or unilateral involvement. Alternatively, this equates to 20/50 vision in each affected eye. Where there is a remaining field of 31 to 45 degrees, a 30 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/70 vision in each eye. Where there is a remaining field of 16 to 30 degrees, a 50 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/100 vision in each affected eye. Where there is a remaining field of 6 to 15 degrees, a 70 percent rating is warranted for bilateral involvement and a 20 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/200 vision in each affected eye. Where there is a remaining field of 5 degrees, a 100 percent rating is warranted for bilateral involvement and a 30 percent rating is warranted for unilateral involvement. Alternatively, this equates to 5/200 vision in each affected eye. Here, the July 2016 VA examination reflects a visual field defect with remaining visual field of 56 degrees. See July 2016 visual field test chart. However, the July 2016 VA examination report reflects the determination by the examiner that there was no visual field defect in the left eye. Moreover, the most recent examination in October 2020 determined that there was no visual field defect in the left eye. The Board notes that the July 2016 examiner did not reconcile the conflicting report in examination finding nor opined whether visual field defect was due to the left eye pterygium. The other contemporaneous medical evidence does not reflect visual field defect caused by his pterygium. In any case, no evidence supports that the Veteran had a visual field defect in the left eye with remaining visual field of 46 degrees or worse for the entire appeal period. Similarly, no evidence supports that the Veteran had a visual field defect in the left eye after October 26, 2020. Disfigurement of the head, face, or neck is rated under Diagnostic Code 7800. A compensable rating requires at least one of the following characteristics of disfigurement: a scar more than 13 cm in length, a scar at least 0.6 cm wide, surface contour of scar elevated or depressed on palpation, scar adherent to underlying tissue, or any of the following in an area exceeding 39 square cm: skin hypo- or hyper-pigmented, skin texture abnormal, underlying soft tissue missing, or skin indurated and inflexible. 38 C.F.R. § 4.118. Here, the evidence does not indicate that the Veteran had scarring and disfigurement related to the left eye pterygium for the entire appeal period. The Board has also considered whether the Veteran is entitled to a compensable rating for conjunctivitis under Diagnostic Code 6018. Both the former and revised criteria for Diagnostic Code 6018 distinguish active and inactive disease processes. Under the former criteria, an active disease process (with objective findings, such as red, thick conjunctivitae, mucous secretion, etc.) is assigned a 10 percent rating. 38 C.F.R. § 4.79 (2008). Under the revised criteria, an active disease process is rated pursuant to the General Rating Formula for Diseases of the Eye, with a minimum rating of 10 percent. 38 C.F.R. § 4.79 (2018). Both the former and revised criteria state that inactive chronic conjunctivitis is to be rated based on residuals such as visual impairment and disfigurement. Here, the evidence indicates that the Veteran did not have active conjunctivitis during the entire appeal period. Regardless of whether he has inactive chronic conjunctivitis or residuals thereof, his visual impairment and disfigurement have been evaluated above. The Veteran also has bilateral cataracts. However, the weight of the evidence is against finding that they are related to his service. A December 2020 medical opinion for negative nexus is of record. The medical treatment records indicate that the Veteran’s cataracts are age-related. See, e.g., September 2020 VA treatment record. In any case, the only visual impairment noted during the appeal period is the visual field defected reported in July 2016 examination, and, with resolution of reasonable doubt in the Veteran’s favor, this impairment has been considered as a result of his service-connected left eye pterygium and evaluated as such. The Board acknowledges the competent and credible lay statements from the Veteran regarding symptomatology. Nevertheless, to the extent that the Veteran attributes his disability to service, he is not competent to opine on the etiology of a complex medical condition such as a pterygium or cataract, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   In conclusion, the weight of the evidence is against the claim for an evaluation in excess of 10 percent for the period from July 28, 2016 to October 26, 2020 and a compensable evaluation after October 26, 2020 for left eye pterygium. Thus, the claim is denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.