Citation Nr: 22015189 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 08-21 886 DATE: March 16, 2022 ORDER A rating higher than 10 percent for bilateral glaucoma and incipient cataracts prior to July 12, 2021, is denied. A rating higher than 20 percent for bilateral glaucoma and incipient cataracts as of July 12, 2021, is denied. Service connection for a skin disability of the groin is denied. Service connection for a skin disability of the feet is denied. FINDINGS OF FACT 1. Prior to July 12, 2021, the Veteran's bilateral glaucoma and incipient cataracts required continuous medication for treatment and results in unilateral (right) loss of inferior visual field. 2. As of July 12, 2021, the Veteran's bilateral glaucoma and incipient cataracts requires continuous medication for treatment and results in concentric contraction of the visual fields to 44 degrees in the right eye and 53 degrees in the left eye. 3. The evidence of record persuasively weighs against finding that a skin disability of the groin began during active service, or is otherwise related to an in-service injury or disease. 4. The evidence of record persuasively weighs against finding that a skin disability of the feet began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. Prior to July 12, 2021, the criteria for a rating higher than 10 percent for bilateral glaucoma and incipient cataracts were not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6012, 6013, 6080. 2. As of July 12, 2021, the criteria for a rating higher than 20 percent for bilateral glaucoma and incipient cataracts are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6013-6066. 3. The criteria for service connection for a skin disability of the groin are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a skin disability of the feet are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is associated with the claims file. The Board adjudicated the appeal on the issues of service connection for a skin disability of the groin and service connection for a skin disability of the feet in an April 2014 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2016 the Court granted a joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the portion of the April 2014 Board decision that denied service connection for a skin disability of the groin and service connection for a skin disability of the feet and remanded the claim to the Board for action consistent with the terms of the JMR. In July 2016, July 2017, and April 2018, the Board remanded the issues of service connection for a skin disability of the groin and service connection for a skin disability of the feet for further development. During the pendency of this appeal, the Veteran's rating for bilateral glaucoma with incipient cataracts was increased to 20 percent effective July 12, 2021. See January 2022 rating decision. Insofar as higher ratings are available for this disability and the Veteran is presumed to be seeking the maximum available benefit, the now-staged claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings 1. Higher ratings for bilateral glaucoma and incipient cataracts The Veteran was originally granted service connection for bilateral glaucoma, incipient cataracts in an unappealed July 2014 rating decision. At that time, this disability was rated 10 percent effective October 12, 2006. The Veteran's current claim for an increased rating was received October 6, 2016. As noted in the introduction, the January 2022 rating decision awarded a 20 percent rating effective July 12, 2021, resulting in a staged rating for bilateral glaucoma and incipient cataracts. The Veteran's bilateral eye disability was initially rated under diagnostic code (DC) 6012 for angle-closure glaucoma. The January 2022 rating decision rated this disability under hyphenated diagnostic code 6013-6066. 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. 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. 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. Both the former and revised criteria for DC 6012 provide a minimum 10 percent rating if continuous medication is required. Under the former criteria, DC 6012 instructed to evaluate based on incapacitating episodes. 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 former DC 6012 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. Under the former criteria, DC 6013 instructed to evaluate pursuant to visual impairment due to open-angle glaucoma. Under the revised criteria, DC 6012 and DC 6013 both instruct the rater to evaluate pursuant to the General Rating Formula for Diseases of the Eye. 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. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. The use of a Goldmann chart is no longer required for visual field and muscle function examinations. There are otherwise no substantive changes to how those types of visual impairment are rated. 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 both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, the evaluation is determined by separately evaluating the visual acuity and visual field defect (expressed as a level of visual acuity) and combined under the provisions of 38 C.F.R. § 4.25. See 38 C.F.R. § 4.77 (c). 1. Prior to July 12, 2021 VA treatment records from this period consistently show corrected visual acuity of 20/40 or better. He treated his glaucoma with eye drops. Private treatment records note that the Veteran had cataract surgery on the right eye on August 30, 2016, and cataract surgery on the left eye on October 4, 2016, which resulted in bilateral pseudophakia. His corrected visual acuity was 20/40 or better bilaterally throughout this period. The November 2016 eye conditions disability benefits questionnaire (DBQ) notes bilateral glaucoma with incipient cataracts. The Veteran had undergone cataract surgery in both eyes and had bilateral pseudophakia. His distance visual acuity was 20/40 or better bilaterally, with or without correction. His uncorrected near visual acuity was 20/200 bilaterally, correctable to 20/40 or better bilaterally. 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 of either eye. He did not have a corneal irregularity that resulted in severe irregular astigmatism. He did not have diplopia. Bilateral intraocular lenses were present. The Veteran had a visual field defect with contraction of a visual field and loss of the inferior half of the visual field in the right eye. he had a scotoma in the right eye that affected at least one-quarter of the visual field, but it was not centrally located. He did not have legal (statutory) blindness based on visual field loss. The visual field perimeter chart was not included, but was later summarized as normal visual fields in the left eye and complete loss of the inferior (down) visual field in the right eye. His bilateral cataracts were postoperative, but there was no aphakia or dislocation of either crystalline lens. The Veteran's visual impairment was not attributable to his cataracts. He also had bilateral open-angle glaucoma, which was responsible for his visual impairment. He used continuous medication to treat his glaucoma. His bilateral eye disability did not cause scarring or disfigurement. He had not had any incapacitating episodes attributable to any eye condition in the prior twelve-month period. This disability did not impact the Veteran's ability to work. Based on the above, prior to July 12, 2021, the Veteran's bilateral glaucoma and incipient cataracts required continuous medication for treatment and results in unilateral (right) loss of inferior visual field. This is consistent with the current 10 percent rating based on visual field impairment under DC 6080. See 38 C.F.R. § 4.79. This 10 percent rating satisfies the minimum rating requirement for glaucoma that requires continuous medication. See 38 C.F.R. § 4.79, DC 6013. As his visual acuity is correctable to 20/40 or better bilaterally, he does not have compensable visual impairment based on visual acuity. Moreover, he does not have diplopia or incapacitating episodes due to eye disability. Accordingly, a rating higher than 10 percent for bilateral glaucoma and incipient cataracts prior to July 12, 2021, is not warranted and his appeal is denied. 2. As of July 12, 2021 The July 12, 2021, eye conditions DBQ shows diagnoses of bilateral glaucoma, pseudophakia, and dry eye syndrome. The Veteran reported blurred vision and the use of eye drops for his glaucoma. His distance visual acuity was 20/40 bilaterally, with or without correction. His uncorrected near visual acuity was 20/50 in the right eye and 20/70 in the left eye, correctable to 20/40 bilaterally. 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 of either eye. He did not have a corneal irregularity that resulted in severe irregular astigmatism. He did not have diplopia. An external eye exam found +2 superficial punctate keratitis, zero tear breakup time, and clear, well-centered posterior chamber intraocular lenses bilaterally. An internal eye exam found moderate cupping in the optic discs. The Veteran had a documented visual field defect with loss of inferior and superior half of a visual field in the right eye, but no scotoma. The accompanying visual field perimeter chart showed loss of visual field as described below: Meridian Normal Right Eye Left Eye Up 45 22 40 Up temporally 55 40 55 Temporally 85 61 80 Down temporally 85 70 72 Down 65 40 45 Down nasally 50 40 41 Nasally 60 39 42 Up nasally 55 38 48 Total: 500 350 423 Average Concentric Contraction 62.5 43.75 52.875 The Veteran did not have legal (statutory) blindness based on visual field loss. He had bilateral dry eye syndrome that was responsible for decreased visual acuity, but he did not receive treatment for this condition. He had bilateral angle-closure glaucoma that required continuous medication for treatment and caused visual impairment. Finally, his bilateral postoperative resulted in pseudophakia, but not aphakia or dislocation of either crystalline lens. The Veteran's visual impairment was not attributable to his cataracts. His bilateral eye disability did not cause scarring or disfigurement. He had not had any incapacitating episodes attributable to any eye condition in the prior twelve-month period. This disability did not impact the Veteran's ability to work. Based on the above, as of July 12, 2021, the Veteran's bilateral glaucoma and incipient cataracts requires continuous medication for treatment and results in concentric contraction of the visual fields to 44 degrees in the right eye and 53 degrees in the left eye. As this constriction is asymmetric, each eye's visual field impairment is assigned its visual acuity equivalent, which is 20/70 for the right eye and 20/50 for the left eye. See 38 C.F.R. § 4.79, DC 6080. Despite the indication that the Veteran lost inferior and superior half of a visual field in the right eye in the right eye, the visual field perimeter chart contradicts this. Moreover, unilateral loss of superior half of a visual field is the equivalent of visual acuity of 20/50 and unilateral loss of inferior half of a visual field is the equivalent of visual acuity of 20/70, so neither would exceed the current 20/70 assigned for the right eye. See id. When the worse eye is 20/70 and the better eye is 20/50a 20 percent rating is warranted. See 38 C.F.R. § 4.79, DC 6066. This 20 percent rating exceeds the minimum rating requirement for glaucoma that requires continuous medication. See 38 C.F.R. § 4.79, DC 6013. As his visual acuity is correctable to 20/40 bilaterally, he does not have compensable visual impairment based on visual acuity. Moreover, he does not have diplopia or incapacitating episodes due to eye disability. Accordingly, a rating higher than 20 percent for bilateral glaucoma and incipient cataracts as of July 12, 2021, is not warranted and his appeal is denied. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Service connection for a skin disability of the groin The Veteran contends that he has a skin disability of the groin due to inservice chemical exposure. Specifically, he reports wearing clothing impregnated with tetrachloride and/or other chemicals as part of an experiment testing new equipment. He also contends that the April 1963 inservice treatment for poison oak on his hand, abdomen, face, and penis, was actually the onset of his current disability. The Board concedes that the Veteran was exposed to toxic chemicals as part of experiments for protective clothing. VA has made several unsuccessful attempts to determine the exact chemical make-up of these toxins, including emails sent in February 2020 and March 2020 letters sent in April 2019, September 2019, December 2019, and March 2020. Therefore, the Board finds that further attempts to obtain these records would be futile. The Veteran has provided documents showing the process and chemicals used for impregnating clothing. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of intertrigo, and the Board concedes that the Veteran was exposed to toxic chemicals as part of experiments for protective clothing, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of intertrigo began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with intertrigo until November 2004, decades after his separation from service. At the time of that initial treatment, the Veteran reported a groin rash for several weeks and a history of jock itch several years prior, but denied a history of neoplasms, eczema, or psoriasis. His VA treatment records first refer to ongoing skin symptoms in 2008 after he submitted his July 2007 claim of service connection for fungal infection of the feet and groin. While the Veteran is competent to report having experienced skin symptoms since service, this contemporaneous medical history, which shows no such history of ongoing symptoms, is more probative as it was provided while seeking treatment when the Veteran for the condition and therefore had no discernable motivation to provide inaccurate information. The February 2017 VA examiner opined that the Veteran's current skin condition of the groin is not at least as likely as not related to his in-service treatment for poison oak. The rationale was that the current skin condition was a new and separate conditions as the service treatment records show contemporaneous treatment without subsequent complaints or recurring abnormal skin condition, which suggests a resolution of the in-service skin rash. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This examiner was unable to provide an opinion on the question of whether the Veteran's current skin condition of the groin was causally related to wearing permeable protective clothing in service. Further, the March 2020 VA examiner opined that the Veteran's intertrigo is not at least as likely as not related to an in-service injury, event, or disease, including in-service chemical exposure due to chemically-impregnated clothing. The rationale was that the Veteran's current skin condition, intertrigo, is due to fungal infection and is unrelated to chemical exposure. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his intertrigo is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the March 2020 medical nexus opinion. For the reasons stated above, the Board finds that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for a skin disability of the groin and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for a skin disability of the feet The Veteran contends that that he has a skin disability of the feet due to inservice chemical exposure. Specifically, he reports wearing clothing impregnated with tetrachloride and/or other chemicals as part of an experiment testing new equipment. He also contends that the April 1963 inservice treatment for poison oak on his hand, abdomen, face, and penis, was actually the onset of his current disability. The Board concedes that the Veteran was exposed to toxic chemicals as part of experiments for protective clothing. As explained above, VA has made several unsuccessful attempts to determine the exact chemical make-up of these toxins and the Board finds that further attempts to obtain these records would be futile. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinea pedis, and the Board concedes that the Veteran was exposed to toxic chemicals as part of experiments for protective clothing, the evidence of record persuasively weighs against finding that the Veteran's diagnosis of tinea pedis began during service or is otherwise related to an in-service injury, event, or disease. The February 2017 DBQ notes an initial diagnosis of dermatophytosis, such as tinea pedis, in 1997, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of skin rash on his feet since service, this is contradicted by the evidence of record. Indeed, his feet were not included in the list of infected areas treated for poison oak in service. At the time of his November 2004 treatment for intertrigo of the groin, he denied a history of neoplasms, eczema, or psoriasis. His VA treatment records only begin to refer to ongoing skin symptoms after her submitted his July 2007 claim of service connection for fungal infection of the feet and groin. Therefore, the Board finds the Veteran's statements regarding ongoing skin symptoms since service to be not credible. The February 2017 VA examiner opined that the Veteran's current skin condition of the feet is not at least as likely as not related to his in-service treatment for poison oak. The rationale was that the current skin condition was a new and separate conditions as the service treatment records show contemporaneous treatment without subsequent complaints or recurring abnormal skin condition, which suggests a resolution of the in-service skin rash. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. 295, 304. This examiner was unable to provide an opinion on the question of whether the Veteran's current skin condition of the feet was causally related to wearing permeable protective clothing in service. Further, the March 2020 VA examiner opined that the Veteran's tinea pedis is not at least as likely as not related to an in-service injury, event, or disease, including in-service chemical exposure due to chemically-impregnated clothing. The rationale was that the Veteran's current skin condition, asymptomatic tinea pedis, is due to fungal infection and is unrelated to chemical exposure. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his tinea pedis is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau, 492 F.3d 1372, 1377 n.4; see also Kahana, 24. Vet. App. 428. Consequently, the Board gives more probative weight to the March 2020 medical nexus opinion. For the reasons stated above, the Board finds that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for a skin disability of the feet and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. JONATHAN B. KRAMER 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.