Citation Nr: 21008816 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-29 982 DATE: February 18, 2021 ORDER A 10 rating, but not more, for residuals shell fragment wound of the right cornea with corneal scar and astigmatism, status post corneal pterygium removal (right eye disability) prior to August 8, 2019, is granted. A 20 percent rating, but not more, for right eye disability from August 8, 2019, to November 22, 2019, is granted. A 20 percent rating, but not more, for right eye disability as of November 22, 2019, is granted. A temporary total rating beyond September 1, 2007 for surgical convalescence is denied. Special monthly compensation (SMC) at the housebound rate beyond September 1, 2007 is denied. FINDINGS OF FACT 1. Prior to August 8, 2019, the Veteran’s right eye disability manifested as noncompensable impairment of visual acuity, dry eye pain, and redness. 2. From August 8, 2019, to November 22, 2019, the Veteran’s right eye disability manifested as impairment of right eye visual acuity correctable to 20/70 and active pathology demonstrated by ongoing use of artificial tears. 3. As of November 22, 2019, the Veteran’s right eye disability manifests as impairment of right eye visual acuity correctable to 20/70 and active pathology characterized by flare ups of red irritated watery eyes two to three times per week. 4. Beginning September 1, 2007, there is no evidence that the Veteran had severe postoperative residuals such as incompletely healed surgical wounds, a necessity for house confinement or continued use of a wheelchair or crutches, or immobilization by cast of a major joint. 5. As of September 1, 2007, while the Veteran has a single service-connected disability rated as 100 percent (PTSD), he does not have additional service-connected disability or disabilities independently ratable at 60 percent or more; nor is he limited to the immediate premises of his home due to service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to August 8, 2019, the criteria for a 10 percent rating, but not more for right eye disability were met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.84a, Diagnostic Codes (DC) 6009, 6066 (2007); 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 DC 6009, 6066 (2020). 2. From August 8, 2019 to November 22, 2019, the criteria for a 20 percent rating, but not more, for right eye disability were met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.84a, Diagnostic Codes (DC) 6009, 6066 (2007); 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 DC 6009, 6066 (2020). 3. As of November 22, 2019, the criteria for a 20 percent rating, but not more, for right eye disability were met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Codes 6009. 4. The criteria for an extension of the temporary total evaluation after the period from July 12, 2007 to September 1, 2007, based on surgical or other treatment necessitating convalescence of the right eye disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 5. The criteria for an extension of special monthly compensation (SMC) at the housebound rate after September 1, 2007, are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The March 2011 rating decision granted a temporary total (100 percent) rating for right eye surgery from July 12, 2007 with a noncompensable rating as of September 1, 2007 and granted special monthly compensation based on housebound criteria from July 12, 2007 to September 1, 2007. The Veteran submitted a notice of disagreement in March 2012. The RO issued a statement of the case in July 2015 and the Veteran perfected his appeal with an August 2015 VA Form 9. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in January 2019. A transcript of the hearing is associated with the claims file. During the pendency of this appeal, the Veteran’s rating for residuals shell fragment wound of the right cornea with corneal scar and astigmatism, status post corneal pterygium removal was increased to 10 percent effective November 22, 2019. As this award does not encompass the entire appeals period and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Rating 1. A compensable rating for right eye disability The Veteran was originally granted service connection for residuals of a shrapnel wound to the right cornea with cornea scar in a December 1968 rating decision. At that time, this disability was assigned a noncompensable (0 percent) rating effective March 27, 1968. The Veteran’s current claim for an increased rating was received October 29, 2010. However, in developing this claim, the July 12, 2007 surgical report has been treated as an informal claim for an increased rating. See 38 C.F.R. § 3.157. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). During the pendency of the appeal, VA has revised the rating criteria for eye disabilities. First, the Board notes that the criteria for the evaluation of disabilities of the eyes were amended effective December 10, 2008, but these amended criteria govern cases only when the claim is filed on or after that date. See 73 Fed. Reg. 66543 (November 10, 2008). As the informal claim (the July 2007 hospitalization report) was prior to December 10, 2008, the rating criteria revised effective December 10, 2008, are not applicable. Second, VA has 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. 15,316 (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. The Veteran’s right eye disability is currently rated under hyphenated diagnostic code 6009-6066. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code (DC) 6009 provides evaluation criteria for unhealed eye injuries. Under the former criteria, 6009 instructs to evaluate from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology with a minimum 10 percent rating during active pathology. 38 C.F.R. § 4.84a (2007). Under the revised criteria, the General Rating Formula 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. The criteria for visual impairment, including impairments of visual acuity, visual fields, and/or muscle function, have remained unchanged. Impaired visual acuity is rated under diagnostic codes 6061-6066 based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impairment of visual fields are rated under DC 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. §§ 4.77, 4.79. Impaired muscle function is rated under DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. When only one eye is service connected, the other eye is considered 20/40 for rating purposes regardless of the actual level of impairment. 38 C.F.R. § 4.75 (c). Prior to August 8, 2019 The July 2007 operation report shows removal of the pterygium with conjunctival graft. A September 2010 VA treatment record for an annual eye exam found no evidence of retinopathy. The Veteran’s best corrected visual acuity was 20/40 in the right eye and 20/20 in the left eye. A new prescription was given. His corneal scar was stable. He continued to use eye drops. He was suffering from dry eye. The November 2010 VA eye examination noted a history of shell fragment in the right eye. The Veteran reported no current eye treatment. His symptoms included blurry vision in the bilateral eyes. He had undergone pterygium surgery in the right eye on December 7, 2007 (the Board notes that this surgery occurred in July 2007). He had no history of neoplasms in the eye. Funduscopic findings were normal bilaterally. There was no diplopia or visual field defect. His uncorrected distance vision was 20/800 in the right eye and 20/80 in the left eye and his uncorrected near vision was 20/400 in the right eye and 20/200 in the left eye. Both distance and near vision were correctable to 20/25 in the right eye and 20/20 in the left eye. Slip lamp findings included nasal anterior stromal scar extending into pupil in the right eye, but were otherwise normal in the right eye and normal in the left eye. There was no other lens abnormality, abnormal lacrimal duct function, abnormal eyelids, chronic conjunctivitis, residuals of eye injury, lagophthalmos, symblepharon, ptosis, nystagmus, eyelash loss, or eyebrow loss. The Veteran had presbyopia. There were no significant effects on usual occupation and no effects on daily activities. VA treatment records from 2012 reflect the Veteran’s reports of glare. His best corrected visual acuity was 20/40 in the right eye and 20/20 in the left eye. He had a well-healed corneal scar. His diagnoses included refractive error, cataracts, right eye corneal scar, status post pterygium excision of the right eye. At his January 2019 hearing, the Veteran testified that he had to stay inside at home for three weeks longer than the duration of his temporary total rating due to symptoms including pain, blurred vision, and redness. His current symptoms included dry eye pain, redness, and poor vision. He treated this disability with eye drops. Based on the above, prior to August 8, 2019, the Veteran’s right eye disability manifested as decreased visual acuity correctable to 20/40 in the right eye, dry eye pain, and redness. This is not a compensable degree of impaired visual acuity. Likewise, the Veteran did not have impaired muscle function, impaired visual field or any incapacitating episodes associated with this disability on or after May 13, 2018, the effective date of the revised rating criteria. As such, a compensable rating based on visual impairment is not warranted under either version of the rating criteria. The Veteran’s additional complaints of dry eye pain and redness, however, suggest active pathology, which entitles the Veteran to the minimum 10 percent rating under the former rating criteria. See 38 C.F.R. § 4.84a, DC 6009 (2007). The record does not reflect any associated rest-requirements, episodic incapacity, or impairment of visual acuity or visual field that would warrant a higher rating. Thus, a 10 percent rating, but not more, is warranted for the Veteran’s right eye disability prior to August 8, 2019, and to that extent his appeal is granted. From August 8, 2019 to November 22, 2019 An August 8, 2019 VA treatment record noted the Veteran’s complaints of gradually increasing blur with his current prescription. He denied pain, diplopia, flashes, and increased floaters. The Veteran had a history of dry eye syndrome for which he used artificial tears daily; pterygium excision with conjunctival flap and nasal corneal opacity within visual axis; history of intraocular shrapnel injury, and blepharitis. His corrected visual acuity was 20/80 in the right eye and 20/25 in the left. Manifest refraction was 20/70 in the right and 20/25 in the left. The Veteran’s pupils were round and equally reactive with no afferent pupillary defect. His confrontational fields were full to finger count bilaterally and he had full range of motion bilaterally. He was diagnosed with bilateral cataracts, right eye corneal opacity, and dry eye syndrome. The Veteran reported that his activities of daily living were not affected. During this period from August 8, 2019 to November 22, 2019, the Veteran’s right eye disability manifested as visual acuity corrected to 20/70, which is consistent with his complaints of blurry vision. This impairment of visual acuity warrants a 10 percent rating under both versions of the rating criteria. See 38 C.F.R. § 4.84a, DC 6066 (2007); 38 C.F.R. § 4.79, DC 6066 (2020). As such, the minimum rating under the former version of DC 6009 is satisfied. See 38 C.F.R. § 4.84a. The record does not reflect any associated rest-requirements, episodic incapacity, or impairment of visual field that would warrant a higher rating under the former criteria. Unlike the prior period, the Veteran denied pain during this period. Nevertheless, he did continue to regularly use artificial tears, which suggests active pathology. It is unclear whether this is due to his service-connected right eye disability or a separate nonservice-connected dry eye condition. As the medical record does not clarify whether this is a distinct condition or a continuation of his earlier complaints, the Board cannot separate these symptoms and they will be treated as due to his service-connected right eye disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, under the former rating criteria, the active pathology suggested by the Veteran’s ongoing daily use of artificial tears entitled him to an extra 10 percent above the rating warranted by his impairment of visual acuity alone, for a 20 percent rating. See 38 C.F.R. § 4.84a, DCs 6009, 6066 (2007). There is no showing of incapacitating episodes, impairment of muscle function, or impairment of visual field that would warrant a compensable evaluation under the new rating criteria that could be combined with the 10 percent rating for impairment of visual acuity. Thus, the former rating criteria are more favorable and a 20 percent rating, but not more, is warranted for the Veteran’s right eye disability from August 8, 2019, to November 22, 2019. To that extent his appeal is granted. As of November 22, 2019 The November 2019 DBQ noted uncorrected distance vision of 10/200 in the right eye and 20/50 in the left eye and uncorrected near vision of 20/200 in the right eye and 20/100 in the left eye. Both distance and near vision were correctable to 20/70 in the right eye and 20/20 or better in the left eye. His pupils were round and reactive to light. There was no afferent pupillary defect. He did not have anatomical loss, light perception only, extremely poor vision, or blindness in either eye. He had a cornea irregularity that resulted in severe irregular astigmatism. He did not customarily wear contact lenses to correct this irregularity. He did not have diplopia. He had a right eye corneal scar and bilateral nuclear sclerotic cataracts, but his external and internal eye exams were otherwise normal. He did not have a documented visual field defect. He had a right cornea scar to which his visual impairment was attributed. Additionally, he had preoperative cataracts bilaterally, but no visual impairment was attributable to this condition. In the prior twelve months, the Veteran had not had any incapacitating episodes attributable to an eye condition. This disability did not impact the Veteran’s ability to work. This examiner noted progression of decreased vision in right eye due to corneal scarring with the current best corrected vision being 20/70 in the right eye dye to residual astigmatism from corneal scarring. This examiner found that there was no convalescent period beyond September 1, 2007. No rationale was provided. The August 2020 DBQ’s findings were largely the same as the November 2019 DBQ, but noted the Veteran’s report of flare-ups of red irritated watery eyes two to three times per week. These flare-ups of symptoms did not induce functional loss as they did not alter the visual function or decrease his vision. The pterygium that was surgically removed from the right eye was at least as likely as not caused by the prior corneal trauma. The right corneal scar remained. This disability did not result in occupational impairment or impairment of activities of daily living. In a September 2020 addendum, the August 2020 DBQ examiner found that the Veteran’s averments of pain, blurred vision, and redness for an additional three weeks after September 1, 2007, were consistent with common post-operative course following pterygium removal with Mitomycin C. Therefore, the post-operative course was normal and would not be considered as a convalescent period. Based on the above, as of November 22, 2019, the Veteran’s right eye disability manifests as visual acuity corrected to 20/70 and flare-ups of red irritated watery eyes two to three times per week. This impairment of visual acuity warrants a 10 percent rating under both versions of the rating criteria. See 38 C.F.R. § 4.84a, DC 6066 (2007); 38 C.F.R. § 4.79, DC 6066 (2020). As such, the minimum rating under the former version of DC 6009 is satisfied. See 38 C.F.R. § 4.84a. The record does not reflect any associated pain, rest-requirements, episodic incapacity, or impairment of visual field that would warrant a higher rating under the former criteria. The Veteran did, however, report regular flare-ups of red irritated watery eyes, which suggests active pathology. Thus, under the former rating criteria, the active pathology suggested by the Veteran’s regular flare-ups of red irritated watery eyes entitles him to an extra 10 percent above the rating warranted by his impairment of visual acuity alone, for a 20 percent rating. See 38 C.F.R. § 4.84a, DCs 6009, 6066 (2007). There is no showing of incapacitating episodes, impairment of muscle function, or impairment of visual field that would warrant a compensable evaluation under the new rating criteria that could be combined with the 10 percent rating for impairment of visual acuity. Thus, the former rating criteria are more favorable and a 20 percent rating, but not more, is warranted for the Veteran’s right eye disability as of November 22, 2019. To that extent his appeal is granted. 2. Extension of a temporary total rating beyond September 1, 2007 The Veteran has appealed the denial of an extension of a temporary total disability evaluation after the period from July 12, 2007 to September 1, 2007. Temporary total disability rating will be assigned if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, with regular weight-bearing prohibited, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a)(1), (2), (3). Moreover, extension of one, two, or three months beyond the initial three months may be made if one of these requirements are met. 38 C.F.R. § 4.30 (b)(1). Extension of one or more months up to six months beyond the initial six-month period may be made upon approval of the Veterans Service Center Manager if the surgery results in severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches with regular weight-bearing prohibited; or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (b)(2). Here, the Veteran contends that he was confined to his home for three weeks longer than the duration of his temporary total rating due to symptoms including pain, blurred vision, and redness. The record does not contain medical evidence from the relevant period. As noted above, the September 2020 addendum opinion found that pain, blurred vision, and redness for an additional three weeks after September 1, 2007, were consistent with common post-operative course following pterygium removal with Mitomycin C and, therefore, the post-operative course was normal and would not be considered as a convalescent period. Indeed, this active pathology is contemplated in the disability rating assigned above. Thus, the record does not contain any objective evidence to support the Veteran’s assertion of home confinement for an additional three weeks after September 1, 2007. The claim for an extension of a temporary total disability evaluation after the period from July 12, 2007 to September 1, 2007 is denied. The evidence is devoid of a showing that the Veteran’s right eye disability resulted in severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches with regular weight-bearing prohibited; or immobilization by cast, without surgery, of one major joint or more subsequent to September 1, 2007. In the absence of a showing of severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches with regular weight-bearing prohibited; or immobilization by cast, without surgery, of one major joint or more, extension of a temporary total disability evaluation for a period of convalescence pursuant to the provisions of 38 C.F.R. § 4.30 is not warranted. The claim of entitlement to an extension of a temporary, 100 percent evaluation, based on surgical or other treatment necessitating convalescence for a right eye procedure must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Extension of special monthly compensation (SMC) at the housebound rate beyond September 1, 2007 The Veteran is also seeking an extension of his special monthly compensation (SMC) beyond September 1, 2007. SMC at the housebound rate under subsection (s) is awarded where the Veteran has a service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound due to such service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Throughout the entire appeals period, the Veteran has been in receipt of a total (100 percent) rating for his posttraumatic stress disorder (PTSD). The March 2011 rating decision on appeal granted a temporary total (100 percent) rating for right eye surgery from July 12, 2007 to September 1, 2007 and granted special monthly compensation based on housebound criteria for the same period. Statutory housebound criteria were met based on this award of a temporary total rating combined with 100 percent rating for PTSD. After the expiration of the temporary total rating, the Veteran still has a service-connected disability rated as total, namely his PTSD. The question then becomes whether his remaining service-connected disabilities, residuals of shell fragment wound to right cornea, residuals of shell fragment wound to the abdomen, residuals of shell fragment wound to right thigh, residuals of shell fragment wound to right arm, tinnitus, and hemorrhoids have a combined rating of at least sixty percent. In this case, these disabilities result in a combined rating of no more than 40 percent, which falls short of the 60 percent combined rating required for statutory housebound. See 38 C.F.R. § 4.25. Thus, statutory housebound is not warranted. The Board has also considered whether the record shows that the Veteran was substantially confined to his dwelling as a result of service-connected disabilities. Here, the Veteran has argued that he had to stay inside at home for three weeks longer than the duration of temporary total and SMC awards. There is no objective evidence that the Veteran was substantially confined to his dwelling during this period. As noted above, the September 2020 addendum opinion found the Veteran’s description of pain, blurred vision, and redness for an additional three weeks after September 1, 2007, was consistent with the common post-operative course and would not be considered as a convalescent period. Thus, SMC at the housebound level is not warranted based on substantial confinement to the Veteran’s dwelling. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.