Citation Nr: 21010403 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-00 946 DATE: February 24, 2021 ORDER Entitlement to an initial 10 percent rating for right eye pterygium, prior to October 26, 2012, is granted. Entitlement to a 20 percent rating for right eye pterygium, from October 26, 2012 to October 31, 2017, is granted. Entitlement to a rating in excess of 10 percent rating for right eye pterygium, from October 31, 2017, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s right eye pterygium results in one characteristic of disfigurement, elevated surface contour, prior to pterygium removal on October 31, 2017. 2. From October 26, 2012 to October 31, 2017, the Veteran’s right eye pterygium resulted in one characteristic of disfigurement and decreased visual acuity of 20/50 right eye and 20/40 left eye (not service-connected). 3. The Veteran’s right eye pterygium was surgically removed October 31, 2017, without recurrence. The resultant scar does not meet any of the characteristics of disfigurement. His visual acuity has been 20/40 or better since removal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating for right eye pterygium, prior to October 26, 2012, have been met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code (DC) 6034, 7800 (2020). 2. The criteria for entitlement to a 20 percent rating for right eye pterygium from October 26, 2012 to October 31, 2017 have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, DC 6034, 7800. 3. The criteria for entitlement to a rating in excess of 10 percent rating for right eye pterygium from October 31, 2017 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, DC 6034, 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1974 to January 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which continued a noncompensable (0 percent) rating for right pterygium. A November 2012 rating decision provided a staged increased 10 percent rating, effective October 26, 2012. History In November 2016, the Board remanded for updated VA treatment records (beyond June 2012) and an updated VA examination. In September 2017, the Board remanded so that additional VA treatment records could be obtained; in an April 2017 statement the Veteran requested that his medical records from Pensacola VA Joint Ambulatory Care Center (JACC) be obtained as he had yearly appointments in May or June. VA records were obtained and associated with the record. In May 2018, the Board denied the Veteran’s claims for increased staged ratings for his right eye pterygium. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC). In February2019, a Joint Motion for Remand (JMR) requested vacatur of the May 2018 Board decision because the record failed to contain treatment records from Dr. B.H. and from “Choice-First Ophthalmology.” The JMR also requested that a March 11, 2011 VA ophthalmology consultation note’s findings regarding visual acuity be specifically addressed. It was noted that this private treatment had occurred in 2017. The May 2018 decision was vacated and remanded for further adjudication in a March 2019 CAVC order. In August 2019, the Board remanded the claims so that the cited private treatment records could be obtained. The Board also noted that the March 11, 2011 VA ophthalmology visual acuity cited in the CAVC decision was uncorrected visual acuity as signified by the notation of “sc” (sans correction). In December 2019, the Veteran submitted a statement that there was no private provider called “Choice-First Ophthalmology;” this referred to the Veteran’s treatment by Dr. B.H. through the VA Choice program. Also, in December 2019, the private treatment records from Dr. B.H. were received. The private records revealed that the Veteran had surgery to remove the right pterygium in October 2017. In September 2020, the Board remanded the claim for additional medical opinions and evaluation following the Veteran’s 2017 surgery. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran and his representative have not expressly raised the issue of TDIU, and no TDIU claim form is contained in the record. Additionally, the record does not reasonably raise the issue of TDIU. The most recent examination included the examiner’s notation that the Veteran’s right eye pterygium did not impact his ability to work. Increased Rating 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. 1. Entitlement to an initial 10 percent rating for right eye pterygium, prior to October 26, 2012, is granted. 2. Entitlement to a 20 percent rating for right eye pterygium from, October 26, 2012 to October 31, 2017, is granted. 3. Entitlement to a rating in excess of 10 percent rating for right eye pterygium, from October 31, 2017, is denied. The Veteran filed a claim for an increased rating for his right pterygium in April 2010. His right pterygium is rated under 38C.F.R. § 4.79, Diagnostic Code (DC) 6034, for pterygium. 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. Under the prior version of DC 6034, pterygium was to be evaluated based on visual impairment, disfigurement (diagnostic code 7800), conjunctivitis (diagnostic code 6018), etc. depending on the particular findings. Under the revised version of DC 6034, pterygium is to be evaluated under the General Rating Formula for Diseases of the Eye (rating based on visual impairment or incapacitating episodes, whichever is higher), disfigurement (diagnostic code 7800), conjunctivitis (diagnostic code 6018), etc., depending on the particular findings, and combine in accordance with § 4.25. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. 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). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (b)(1). Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. The Board notes that the Veteran’s left eye is not service-connected. As such, his vision for his left eye is considered 20/40 when determining a rating based on central visual acuity. Prior to October 26, 2012 A July 2004 VA examination noted that the Veteran had pterygium of the right eye, and he had not yet had any ophthalmologic treatment for it. His corrected vision was 20/25 right, and 20/20 left. He had a 3.5 nasal pterygium. He was noted to have slight reduction of acuity of the right eye likely secondary to the pterygium, as well as an astigmatism of 1.25 diopters in the right eye. “Pterygium has resulted in poor tear coverage of cornea and dry eye symptoms;” however, the Veteran was noted to have bilateral dry eye syndrome. A July 2004 VA eye examination showed corrected distance vision of 20/25 right and 20/20 left. Again, it was noted that the Veteran’s “slight reduction of visual acuity in his right eye was likely secondary to pterygium.” Eye Center of North Florida records from March 2006, June 2006, and January 2007 showed the Veteran was being seen for glaucoma evaluation. His uncorrected vision was 20/30 right and 20/25+ left. He was assessed with borderline glaucoma, right pterygium, and bilateral pinguecula. A February 16, 2010 VA optometry record showed the Veteran’s corrected distance vision to be 20/40 right and 20/30- left. He was assessed with dry eye syndrome. A May 2010 VA eye examination included the Veteran’s complaint of blurry right vision for the past week and occasional sharp pain. He used refresh tears on both eyes three times per day. His corrected distance vision was 20/40 right and 20/20-2 left. He had full visual fields to confrontation. Slit lamp examination showed a raised, moderately vascularized nasal pterygium with encroachment into clear cornea approaching the visual axis. He was noted to have a visually significant nasally pterygium with nearing encroachment on visual axis and including astigmatism. He also had mild/moderate dry eye syndrome, and diabetes without retinopathy. A February 3, 2011 VA optometry record showed the Veteran’s visual acuity was 20/30 right and 20/25 left. His pterygium was noted to be 2 mm. A March 11, 2011 record showed uncorrected visual acuity of 20/50-2 right and 20/50+2 left; his corrected vision was noted to be 20/40 right and 20/30+3 left. His pterygium was not in the visual axis, but was the likely cause of astigmatism and visual acuity. The ophthalmologist “discussed concerns for recurrence status/post removal;” the Veteran decided to “wait and watch for now.” A November 8, 2011 VA ophthalmology record noted the Veteran’s uncorrected visual acuity was 20/60 right and 20/30-2 left. His corrected distance vision was 20/40 right and 20/30+3 left. He had a moderately vascular pterygium approximately 2 to 2.5 mm from limbus. It was not on the visual axis but “appear[ed] somewhat active.” A June 8, 2012 VA ophthalmology record included the Veteran’s report that his pterygium was growing. His uncorrected vision was 20/50 right and 20/30-1 left. His corrected vision was 20/40 right and 20/30+3 left. He had a slightly raised min vascular pterygium measuring approximately 2 to 2.5 mm from limbus. It was not in his visual axis and appeared unchanged from prior visits. The pterygium was the likely cause of his astigmatism and decreased visual acuity in his right eye. Under DC 6066, for rating Impairment of Central Visual Acuity, vision of 20/40 or better in both eyes warrants a noncompensable rating. During this period on appeal, the Veteran’s corrected distance vision did not warrant a compensable rating. Under DC 6018, inactive conjunctivitis is to be rated based on residuals such as visual impairment or disfigurement. During this period on appeal, the treatment records and examination did not indicate that the Veteran had active conjunctivitis. Resolving reasonable doubt in the Veteran’s favor, the Board finds that a 10 percent rating is warranted for right eye pterygium for the period prior to October 31, 2017 under DC 7800. Although the VA examiners noted that the Veteran did not have disfigurement from his right pterygium, the Board finds that a right pterygium of 2 to 3.5 mm meets the characteristic of disfigurement of the “surface contour of scar elevated or depressed on palpation.” A pterygium is not a scar, but DC 6034 directs that pterygium should be rated under DC 7800, indicating it can be rated as though it is a scar. A pterygium is a pinkish tissue growth on the cornea of the eye; if it were palpated it would be raised or elevated. The 2010 examiner noted that his pterygium was “raised.” As such, a 10 percent rating for one characteristic of disfigurement is warranted for the period on appeal prior to October 31, 2017. An increased rating under DC 7800 is not shown. The Veteran does not have visible or palpable tissue loss, nor more than one characteristic of disfigurement. The remaining characteristics are not applicable as they have size requirements which are not met by the 2 to 3.5 mm pterygium, and the pterygium is not adherent to underlying tissue as there is no indication of limitation of eye motility. From October 26, 2012 to October 31, 2017 On October 26, 2012, the Veteran participated in a VA eye examination. His corrected distance vision was 20/50 right and 20/40 left. He did not have diplopia. His right nasal pterygium was described as 4 mm into the corneal surface. The examiner noted that the Veteran’s decreased visual acuity was due to his pterygium. The examiner denied that the Veteran’s pterygium caused disfigurement, to include finding it did not result in surface contour of scar elevated or depressed on palpation (or inspection in the case of cornea or sclera). Under DC 6066, vision of 20/50 right and 20/40 left warrants a 10 percent rating. An October 8, 2014 VA ophthalmology record included that the Veteran’s vision was 20/40 right and 20/20 left. He had a “slightly raised minimally vascular pterygium of approximately 2-2.5 mm from limbus right eye.” He was assessed with a not visually significant pterygium of the right eye, not in the visual axis. An April 8, 2015 VA optometry record noted that the Veteran’s corrected distance vision was 20/40 right and 20/25 left. He had full visual field to confrontation of both eyes. During a May 11, 2016 VA optometry evaluation, the Veteran reported that his right eye was itchy, and he used a saline solution twice per day to deal with the itching. His corrected vision was 20/40+ right and 20/25 left. He was noted to have right pterygium, left pinguecula, and bilateral nuclear sclerotic cataracts. On May 18, 2017, the Veteran participated in his most recent VA eye examination. He had corrected distance vision of 20/40 or better bilaterally. His pterygium was noted to be 3 mm, and the examiner found that he did not have decrease in visual acuity or other visual impairment. The examiner also selected that the pterygium did not result in scarring or disfigurement. He had not had incapacitating episodes in the prior 12 months, with the former definition of incapacitating episodes considered. A June 21, 2017 VA optometry record noted that the Veteran’s corrected visual acuity was 20/50 right and 20/40 left. The Veteran reported that the pterygium was “interfering with visual performance” and in September 2017, he was referred to the VA Choice program to see a corneal specialist. On October 21, 2017, the Veteran reported to Dr. B.H. that his right pterygium had been present for 20 years and was growing towards the center of his cornea. The Veteran also complained that the right eye would get red and irritated intermittently, and that he had blurry right vision. Slit lamp evaluation showed pterygium of the right eye was 9 mm at base and 4 mm from limbus, “large.” On October 31, 2017, the Veteran underwent pterygium removal and conjunctival graft. During this period on appeal, the Veteran’s corrected distance vision worsened to 20/50 right and 20/40 left which warrants a 10 percent rating under DC 6066. Additionally, prior to removal on October 31, 2017, the Veteran continued to have a raised pterygium warranting a 10 percent rating under DC 7800 (disfigurement). The Board notes that an increased rating under DC 7800 is not warranted. The Veteran does not have visible or palpable tissue loss, nor more than one characteristic of disfigurement. The remaining characteristics are not applicable as they have size requirements which are not met by the 4 to 9 mm pterygium, and the pterygium is not adherent to underlying tissue as there is no indication of limitation of eye motility. Combining the two 10 percent ratings under 38 C.F.R. § 4.25 shows that a 20 percent rating is warranted for the period from October 26, 2012 to October 31, 2017. From October 31, 2017 On October 31, 2017, private treatment records by Dr. B.H. noted that the Veteran underwent right pterygium removal and conjunctival graft. The day following surgery, the Veteran felt “pretty good” with the eye patch off. He was on several medications, including Prednisolone acetate eye drops. Without correction his right vision was 20/100 right eye. Slit lamp evaluation showed “cornea nasal pterygium excision site and conjunctival graft over sclera with host site superior, found old perforation with scar under pterygium, covered well with conjunctival graft.” By November 9, 2017, the Veteran’s uncorrected vision was 20/100 right and 20/25-2 left. He had a small granuloma starting. By December 13, 2017, the Veteran’s cornea showed a nasal superficial scar well-healed, conjunctival nasal graft intact and healed. His corrected vision was 20/40 right and 20/30 left. The diagnosis section was limited to “age-related nuclear cataract, bilateral.” A June 19, 2018 VA optometry record included that the Veteran’s corrected visual acuity was 20/50 right and 20/30 left. The Veteran noted he was not ready for cataracts surgery. A July 27, 2018 Dr. B.H. record included the Veteran’s report of a “film” over his right eye, such that “things run together.” Slit lamp evaluation showed right nasal pterygium surgery scar, left nasal pinguecula, and bilateral cataracts. His macula showed retinal pigment epithelium changes bilaterally. He also had attenuated/narrowed vessels bilaterally. He was only diagnosed with “age-related nuclear cataract, bilateral.” A June 14, 2019 VA optometry record included that the Veteran’s corrected vision was 20/40 right and 20/30 left. Slit lamp examination showed nasal pterygium right, nuclear sclerotic cataract both eyes. The assessment was of no diabetic eye disease, right pterygium, and refractive error. On November 25, 2020, the Veteran participated in a fee-basis VA examination. The examiner noted that the pterygium had grown over many years, and was removed in 2017. It had not grown back. There is a surgical scar/opacity nasally on the right cornea. His bilateral cataracts were diagnosed “in 2017 during a routine eye exam.” The bilateral cataracts worsened with time and were affecting his visual acuity. His bilateral dry eye syndrome was diagnosed in 2010 during VA examination. The Veteran had symptoms of watery and itchy eyes; he did not use anything for treatment. The condition had stayed the same since diagnosis in 2010. His corrected distance vision was 20/40 bilaterally. He did not have diplopia or a visual field defect. His right cornea had corneal opacity nasal, flat. He had reduced tear break up time for both corneas. He had bilateral 2+ nuclear sclerotic cataracts. The examiner selected that the Veteran did not have a disorder of the lacrimal apparatus. The Veteran had a right corneal opacity that did not result in a visual defect or impairment. He had bilateral preoperative cataract without aphakia or dislocation of the crystalline lens. His cataracts contributed to his visual impairment. The examiner selected that the Veteran did not have scarring or disfigurement attributable to an eye condition. He had not had any incapacitating episodes in the prior 12 months. The examiner selected that the Veteran’s eye condition did not impact his ability to work. The examiner remarked that “for the Veteran’s claimed condition of right pterygium there was no diagnosis” because the condition had resolved as he had removal surgery in 2017. There was no regrowth. The examiner noted that the pterygium had been described as slightly raised in 2010 and 2014, but that there was no pterygium following removal. Regarding the Veteran’s symptom of a “film” over his vision, the examiner noted that this could be due to his cataracts or his dry eye syndrome. The examiner found that it was not due to pterygium, as it had been removed. Both diagnoses of cataracts and dry eye syndrome could cause the symptom of a film over his right eye. He had a surgical scar on his right eye from his previous pterygium was “currently non-elevated.” The examiner found that the dry eye syndrome was less likely than not caused by his pterygium as his dry eye syndrome affected both eyes. Additionally, his dry eye remained following pterygium removal. The examiner also noted that the Veteran’s dry eye syndrome was mild/moderate when first diagnosed in 2010 and remained mild/moderate during the 2020 examination. As such, the examiner found that the Veteran’s dry eye syndrome had not worsened, or been aggravated by his right pterygium. (Continued on the next page)   For the period from October 31, 2017, the Board finds that a rating in excess of 10 percent for right pterygium residuals is not warranted. The Veteran’s corrected distance vision was 20/50 right and 20/40 left, at worst, warranting a 10 percent rating under DC 6066. Additional rating under DC 7800 is no longer warranted as the right pterygium was surgically removed. He previously warranted a 10 percent rating under DC 7800 due to the elevation of the right pterygium. The removal scar from the right pterygium is not raised, and does not meet any of the other characteristics of disfigurement. As such, a rating in excess of 10 percent is not warranted. The Board has considered if separate or additional ratings are warranted for the Veteran’s right eye pterygium. The 2020 examiner noted that the Veteran’s bilateral dry eye syndrome was not caused or aggravated by his service-connected right eye pterygium as his dry eye syndrome was bilateral and had remained of a mild/moderate severity over the 10 year period the Veteran was diagnosed, without a change in severity following pterygium removal. Similarly, the Veteran’s report of a symptom of a film over his vision was opined by the 2020 examiner to be due to his cataracts or dry eye syndrome. The examiner noted that the Veteran’s cataracts was not due to his service-connected right pterygium as it was bilateral. Additionally, treatment records referred to his cataracts as “age-related.” As such, The Board finds that additional rating is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.