Citation Nr: 21011630 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-32 202 DATE: March 2, 2021 ORDER Entitlement to an initial compensable disability rating for a right eye corneal scar is denied. FINDING OF FACT Throughout the pendency of the appeal, the Veteran’s right eye corneal scar has not caused visual impairment and has not been manifested by any incapacitating episodes; right eye scars are minimal, neither visually or cosmetically significant, and have not been described as disfiguring, painful, or unstable. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for a right eye corneal scar have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code (DC) 6001. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1977 to February 1997. The Veteran testified in support of his claim during a videoconference hearing before the undersigned Veterans Law Judge in November 2018. The Veteran’s claim was previously before the Board in March 2019. At that time, the Board determined that the Veteran should be afforded a new VA examination and that the Veteran’s private medical records should be obtained. That development having been completed, the Veteran’s claim is before the Board again and will be adjudicated below. Increased Rating 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). 1. Entitlement to an initial compensable disability rating for a right eye corneal scar Historically, in a February 2014 rating decision the regional office (RO) granted service connection for right eye corneal scar and assigned a noncompensable (0 percent) evaluation, effective March 22, 2013. The Veteran submitted a June 2014 notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2015 and a substantive appeal was filed in September 2015. As noted above, the matter was remanded by the Board in March 2019. Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection and times contemporaneous thereto. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s right eye corneal scar is currently rated under DC 6001-7805. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Id. The Board observes that in the selection of code numbers assigned to disabilities will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. During the applicable period on appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, DC 6001 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 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. 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 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 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 rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent 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. DC 6066 provides ratings where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in one eye (the poorer eye) is 20/50, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. For brevity, the Board will not list all of the ratings available based on Impairment of Central Visual Acuity, as the remainder are not applicable in this case. Under the revised criteria (2018), DC 6001 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. 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. As for the Veteran’s corneal scar, the Board notes that during the appeal period, changes were made to certain diagnostic codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the old rating criteria, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Codes 7805 (2017). The Board notes that this Diagnostic Code is largely unchanged under the new amendments apart from the replacement of the phrase “(including linear scars)” with “and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, Diagnostic Code 7805 (August 13, 2018). Turning to the evidence of record, the Veteran submitted a letter from a private physician in July 2013. The physician noted that the Veteran had a moderately dense scar covering the temporal half of his right cornea. She further noted that this scarring had caused a severe astigmatism, antimetropia, visual imbalance, and slightly reduced corrected acuity. The Veteran presented for an eye examination with a private physician in October 2013. Unaided visual acuity in the right eye was 20/40 distance. Corrected distance was 20/20, and corrected near was also 20/20. The Veteran’s ocular muscles were noted to be full and unrestricted. His eyelids were normal with complete closure upon blink, no eyelid swelling, and no eyelid lesions. The physician noted that the Veteran’s right eye had rest-like lines present at the basement membrane, and corneal opacification was noted without associated inflammation, and was moderately dense. The defect covered the entire temporal half of the Veteran’s cornea. In November 2013, the Veteran underwent a VA examination for his eye condition. The Veteran reported a history of blurred, uncorrected distance vision which had been a problem for about 35 years and was successfully corrected with the use of glasses. The Veteran reported that he was not currently receiving treatment for his eye, other than glasses. The Veteran’s visual acuity for his right eye was as follows: 20/100 uncorrected distance, 20/40 or better uncorrected near, 20/40 or better corrected distance, and 20/40 or better corrected near. The Veteran’s pupils were round and reactive to light, and there was no afferent pupillary defect present. The examiner found that the Veteran did not have any irregularity that resulted in severe irregular astigmatism, nor did he suffer from diplopia. The Veteran’s results were normal for his external lashes, anterior chamber, iris, and lens. He exhibited nasal temporal pinguecula and scarring which covered the majority of his temporal cornea outside of the visual axis. The Veteran’s internal eye examination showed abnormal fundus, with his right optic disc described as 0.7 cup to disc ratio with deep cupping. His macula, vessels, vitreous, and periphery were normal. The Veteran did not have a visual field defect. The examiner concluded that the Veteran had pinguecula, corneal conditions, and optic neuropathy. The examiner noted that the Veteran did not experience decrease in visual acuity or other visual impairment. In addition, none of the eye conditions identified caused scarring or disfigurement. The examiner noted that the Veteran did have a right eye corneal scar outside the visual axis, but the scar was not visually significant and was not disfiguring. The examiner provided that the scar was at least one-quarter inch (0.6 cm) wide at the widest part. In the last 12 months, the Veteran did not have any incapacitating episodes attributable to any eye conditions. The Veteran’s eye condition was not found to impact his ability to work. The examiner noted that the Veteran had bilateral pinguecula, bilateral astigmatism and presbyopia. During the Veteran’s November 2018 hearing, he testified that he had blurry vision, loss of vision, and headaches that he believed could be due to his service-connected right eye corneal scar. He also testified that his condition had worsened since his last VA medical examination and that he had a private eye examination recently. The Veteran was afforded a VA examination in January 2020. The examiner determined that the Veteran currently had a right eye corneal scar. The Veteran reported suffering from a severe eye infection of the right eye in the late 1980s, and that he noticed after the infection that the vision in his right eye was blurry. The Veteran denied any pain. The Veteran’s right eye visual acuity was 20/100 for uncorrected distance, 20/20 for uncorrected near, 20/20 for corrected distance, and 20/20 for corrected near. The examiner noted that the Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness. The Veteran did not suffer from severe irregular astigmatism or diplopia. The examiner noted that the Veteran had pinguecula in both eyes. The Veteran did not exhibit a decrease in visual acuity or other visual impairment. The Veteran did exhibit scarring or disfigurement attributable to any listed eye condition. During the past 12 months, the Veteran did not experience any incapacitating episodes attributable to his eye condition. The examiner determined that the Veteran’s eye condition did not impact his ability to work. The examiner also determined that the current severity of the Veteran’s eye condition was mild. She noted that the Veteran’s documented bilateral pinguecula, optic nerve head cupping, and early-staged cataract were unrelated to the Veteran’s corneal scarring. The examiner provided that the Veteran’s scars were not dermatologic in nature, and that opacities were only viewable with specialized ophthalmic equipment; the scar was not grossly observed or disfiguring. The examiner found that although the Veteran’s corneal scarring spared the visual axis and the Veteran’s sight was correctable to 20/20 with glasses, there was a notable asymmetry in the refractive errors between his eyes, specifically astigmatically. The examiner opined that the Veteran’s corneal scarring induced an astigmatic refractive error; albeit there was no vision loss since the Veteran was able to see 20/20 with appropriate spectacle correction. The astigmatism would not be considered developmental in the Veteran’s case, but rather induced by the temporal corneal scarring. In July 2020, the Veteran underwent a VA examination for headaches. The Veteran reported that his headaches began while he was in active duty, and they occur in the posterior aspect of the head and the left frontal temple. He also reported feeling pressure in his eyes, the left greater than the right. He reported severe headaches 1 to 2 times per month, lasting for 2 to 3 days. He reported non headache symptoms such as photophobia, and nausea without vomiting. The examiner concluded that the Veteran’s headaches were less likely than not caused by or the result of the Veteran’s service-connected right corneal eye scar. She explained that medical literature did not support a causal relationship between tension headaches and corneal scarring and that instead, tension headaches were caused by peripheral activation or sensitization of myofascial nociceptors. The Veteran also saw an optometrist in July 2020. That examiner determined that the Veteran’s corneal scar was not visually-significant, with 20/20 acuity. The Board concludes that the evidence of record does not reflect that the Veteran’s symptoms meet the criteria for a compensable rating for the period on appeal. To warrant a compensable rating, the evidence would need to show impairment in visual field, impairment in visual acuity (20/50 or worse in the right eye), incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, or incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months. Here, however, the Veteran has not been found to have any impairment in visual acuity or visual field at any point during the period on appeal. On one occasion in July 2013, an examiner noted that the Veteran had slightly reduced corrected visual acuity, but nowhere else in the record has this been noted again. Rather, the Veteran’s right eye corrected visual acuity has consistently been noted to be 20/40 or better, his visual field has not been noted to have a defect, and he has not complained of or been treated for incapacitating episodes. The Board has also considered whether a higher or additional rating is warranted under the rating criteria for skin. However, the Veteran’s right eye scar is minimal, neither visually or cosmetically significant, and has not been described as disfiguring, painful, or unstable. Therefore, a separate or compensable rating is not warranted under DCs 7800-7805. As discussed above, the Board finds that there is no indication that the Veteran had an impairment in visual acuity, impairment in visual field, or other symptoms or diagnosis attributable to the service-connected right eye scar to warrant any higher or additional ratings. As such, a compensable rating for the Veteran’s right eye disability is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.