Citation Nr: 21042251 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-02 327 DATE: July 12, 2021 ORDER Entitlement to service connection for glaucoma is denied. Entitlement to a disability rating of 20 percent, but no higher, prior to December 11, 2019, for a left ankle disability is granted. Entitlement to a disability rating greater than 20 percent for the entire period on appeal for a left ankle disability is denied. FINDINGS OF FACT 1. The Veteran does not have a current eye disability for VA compensation purposes. 2. The Veteran's left ankle disability was manifested by marked limitation of motion prior to December 11, 2019. 3. The Veteran's left ankle disability has been manifested by marked limitation of motion throughout the period on appeal, but ankylosis has not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for glaucoma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to a disability rating of 20 percent, but no higher, for a left ankle disability prior to December 11, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. 3. The criteria for entitlement to a disability rating greater than 20 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to September 1974. He appeals a July 2014 rating decision denying entitlement to service connection for glaucoma and denying entitlement to a rating greater than 10 percent for a left ankle disability. During the appeal, the Veteran was granted a 20 percent rating for his left ankle disability effective December 11, 2019. As this does not represent a full grant of benefits sought on appeal, the issue of entitlement to an increased rating for a left ankle disability is still on appeal. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 1. Entitlement to service connection for glaucoma. The Veteran contends that he his claimed glaucoma is related to active service. He specifically asserts that he was treated for an eye injury during active service, after receiving several blows to the head and eyes during an altercation. After a review of the evidence, the Board finds that service connection is not warranted. The Veteran's service treatment records do not contain complaints of or treatment for any eye conditions. The Veteran claims he received treatment for his injuries and points to treatment for a spider angioma on the left lower eyelid in July 1974. However, in August 1974, it is noted that the ailment is a skin condition that has almost completely resolved. Furthermore, a witness to the alleged altercation specifically states that the event occurred in November 1972, not in 1974. There is no evidence of record showing treatment for any head or eye conditions other than an October 1972 note indicating that the Veteran wears prescription eyewear. At separation from service, no eye conditions were noted, and the Veteran stated, "my health is good." Based on foregoing, the Board is unable to concede the occurrence of an in-service eye injury. In addition, it does not appear that the Veteran has actually been diagnosed with glaucoma. In considering the Veteran's claim, the Board takes judicial notice of the following: Those having structural injury to the eye and functional damage measured in their visual field qualify as having glaucoma. Glaucoma suspects, on the other hand, have some risk of the disease, but no proven damage yet. See https://www.glaucoma.org/glaucoma/round-up-the-usual-suspects.php. In May 1995, the Veteran was diagnosed as a glaucoma suspect. No formal diagnosis of glaucoma was rendered at the time. Nevertheless, the evidence indicates that the Veteran self-reported an actual diagnosis of glaucoma to future treatment providers. This fact was not lost in January 2020 when the Veteran underwent a VA examination. The examiner noted that records are inconsistent about a diagnosis of glaucoma. In fact, records as recent as March 2019 remarks the claimant is a "low risk glaucoma suspect." The examiner observed that the Veteran has consistently been diagnosed with "pre-glaucoma" or as a "low-risk glaucoma suspect". The Veteran further claimed that he was not diagnosed with glaucoma in service due to a lack of medical ability to diagnose glaucoma. The examiner noted that this is not an accurate statement as glaucoma has been successfully diagnosed and treated since at least the 1950's. Accordingly, the Board is also unable to concede the existence of a currently diagnosed eye disability. The Board observes that a formal diagnosis is not required if the condition causes functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1361-62 (2018). However, to establish a disability, a veteran must show that his symptoms result in a functional impairment of earning capacity." Id. at 1368. Here, the Veteran contends that his vision is very poor due to elevated pressure and optical nerve damage from his claimed in-service injury. Unfortunately, the evidence does not support the Veteran's assertion. First, the evidence clearly shows that the Veteran wore prescription eyewear prior to service to correct his vision. In addition, the January 2020 VA examiner noted that there is no evidence of acute elevated pressure which would surely require treatment. As such, the evidence shows that the Veteran does not have an eye condition related to service for which the symptoms result in a functional impairment in earning capacity. Therefore, service connection for glaucoma is not for application, as the evidence fails to demonstrate that a current disability exists. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In arriving at this conclusion, the Board acknowledges the contentions made by the Veteran that he has glaucoma because of active service. However, as a lay person not trained in the field of medicine, he is not competent to offer such a diagnosis in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In summation, the preponderance of the evidence demonstrates that the Veteran does not have current eye disability that is related to active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990). For these reasons, the claim is denied. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 2. Entitlement to an increased rating for a left ankle disability. The Veteran seeks a higher rating for his left ankle disability for the periods on appeal. After a review of the evidence, the Board finds that a rating of 20 percent, but no higher, is warranted throughout the entire period on appeal. The Veteran's left ankle is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, which compensates for limited motion of the ankle. Under this Diagnostic Code (DC), a 10 percent rating is warranted for "Moderate" limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), whereas a 20 percent rating is warranted for "Marked" limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a, DC 5271. Prior to December 11, 2019, the Veteran is rated at 10 percent for his left ankle disability. The evidence indicates that a 20 percent rating, but no higher, is warranted for this period. In October 2016, the Veteran underwent a VA examination to assess the severity of his left ankle disability. Initial range of motion measured dorsiflexion and plantar flexion at 0 to 10 degrees. The examiner also noted that the Veteran suffered from flare-ups ranging from mild to severe with corresponding additional loss of range of motion. According to the examiner, a severe flare-up may prevent any movement whatsoever. Hence, the Veteran met the criteria for a 20 percent rating as of the October 2016 VA examination because the evidence indicates that severe flare-ups result in "Marked" limitation of motion. In addition, it stands to reason that the severity of the Veteran's disability did not suddenly worsen on the day of the examination. For example, the Veteran reported at the examination that he had difficulty walking and his ankle gave out without warning at times. As such, the Board finds that the Veteran's symptoms were most accurately characterized by "Marked" limitation of motion throughout the period under consideration. Next, the Board has considered whether a rating in excess of 20 percent is warranted for any portion of the appeal. As an initial matter, the Board notes that a 20 percent rating is the highest warranted under DC 5271. As such, in order to warrant a rating in excess of 20 percent for a left ankle disability the evidence must show ankylosis of the ankle: In plantar flexion between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees (30 percent); or In plantar flexion at more than 40 degrees, or in dorsiflexion, at more than 10 degrees or with abduction, adduction, inversion or eversion deformity (40 percent). See 38 C.F.R. § 4.71a DC 5270. Based on the evidence of record, a rating in excess of 20 percent is not warranted. Specifically, at an evaluation in August 2015, the Veteran stated that he was experiencing pain in his left ankle for a "few weeks." This implies that his pain and limitations have not been constant. Moreover, at a VA examination in October 2016, he displayed a reduced, but measurable range of motion in the left ankle. Moreover, while flare-ups were mentioned, the examiner did not believe that such flare-ups were, on the whole, tantamount to ankylosis. Next, in a follow-up VA examination in December 2019, the Veteran mentioned that he experienced flare-ups that caused extreme pain and were precipitated by any activity that uses the ankle. However, his pain was otherwise constant and moderate. Upon examination, his range of motion was again observed to be limited, but still measurable. As was the case before, the examiner noted that the extent of limitation was inconsistent and, as a result, it was difficult to estimate a consistent amount of limitation. However, from the Board's point of view, the Veteran's flare-ups are not so severe to be considered tantamount to ankylosis. Therefore, an increased rating is not warranted on this basis. In considering the appropriate disability ratings, the Board has considered the Veteran's statements that his ankle disability are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his ankle disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination and treatment reports) directly address the criteria under which this disability is evaluated. As a result, the Board concludes that a 20 percent rating for the Veteran's left ankle disability, but no more, is warranted. The appeal is granted to this extent. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel