Citation Nr: 0006305 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 95-36 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral eye disability, currently characterized as blindness of both eyes. 2. Entitlement to a rating in excess of a noncompensable evaluation for residuals of a fracture of the distal phalanx of the fourth finger of the left hand. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from January 1963 to October 1966. This appeal is before the Board of Veterans' Appeals (Board) from rating decisions from the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The October 1994, March 1995, and January 1996 decisions denied service connection for blindness of both eyes. The October 1994 decision granted service connection for a fracture of the distal phalanx of the fourth finger of the left hand as noncompensable. The March 1995 and January 1996 decisions continued the noncompensable evaluation. The July 1997 Board decision remanded the case to obtain additional medical records and VA examinations. This matter is now before the Board for appellate review. FINDINGS OF FACT 1. The medical evidence does not include a nexus opinion relating a current bilateral eye disability to active service. 2. The medical evidence does not show any treatment of the fourth finger of the left hand since service. 3. The current medical evidence shows that the fourth finger of the left hand is asymptomatic, with no limitation of motion and no bone abnormalities. CONCLUSIONS OF LAW 1. The claim for service connection for a bilateral eye disability, currently characterized as blindness of both eyes, is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). 2. The criteria are not met for a compensable rating for residuals of a fracture of the distal phalanx of the fourth finger of the left hand. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.20, 4.71a, Diagnostic Codes 5155 and 5227 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claim of entitlement to service connection for a bilateral eye disability Factual Background The January 1963 enlistment examination report stated that the veteran's eyes were normal, and the examiner noted defective vision of undetermined type. The September 1966 separation examination report stated that the veteran's eyes were normal although the examiner noted defective distant and near vision, and the veteran reported that he wore eyeglasses for eye trouble. W. Cross, M.D., performed radial keratotomy (RK) surgery on both of the veteran's eyes in August 1989. The veteran reported that he wore glasses since age 6. He needed a lot of light to see, and his ability to see had worsened in the last 5 years. He could not wear safety glasses at work because then he could not see. J. Rowes, a private ophthalmologist, examined the veteran's eyes in June 1993 after the veteran failed a driving test. After examination, Dr. Rowes opined that the veteran had a rather high degree of myopia prior to the RK surgery. He opined that cataracts were not the sole reason for decreased vision and referred the veteran to G. Avery, M.D. Dr. Rowes' August 1993 letter stated that, after the June 1993 examination, he referred the veteran to Dr. Avery for evaluation of the retina and assessment of mild myopic degeneration. Dr. Rowes stated that Dr. Avery agreed with him that the veteran's glare problems were secondary to RK scars, certainly not helped by cataractous change. Dr. Rowes opined that the veteran had no problems sitting, standing, walking, lifting, carrying, handling objects, hearing, and speaking. With respect to travel, the veteran would have significant problems with glare that would limit driving. Dr. Rowes opined that cataract removal would not alleviate the veteran's symptoms because the major problem was the cornea scarring from the RK surgery. Dr. Rowes' April 1996 letter stated that, when he saw the veteran, there was nothing that could be associated with military activity. Dr. Rowes opined that the veteran's problems were related to RK surgery, cataracts, and myopic degenerative changes. Dr. Cross, who performed the RK surgery, again examined the veteran in July 1993. The diagnosis was bilateral amblyopia, significantly decreased visual acuity, and no improvement with eyeglasses. The examiner opined that decreased visual acuity was possibly neurologically related. An August 1993 letter from the Texas Rehabilitation Commission stated that the veteran had applied for disability benefits through the Social Security Administration (SSA). In response to the October 1993 SSA questionnaire, the veteran stated that he could not travel to and from work, read the newspaper, watch television, drive the car, and use the telephone because he could not see. He stated that he could not focus on objects of any size, and he constantly ran into objects. His eyes were tired all the time from straining to see. The veteran's April 1996 statement alleged that his eye disability probably pre-existed service and was aggravated by service. The representative's April 1996 letter and the veteran's July 1997 letter alleged that weather conditions and constant winds in service caused the rapid deterioration of his eyes. The RO received a January 1996 statement from the veteran's friend who roomed with and worked with the veteran in service. The friend remembered that the veteran could not see the target during shooting practice in service. At the end of one practice session, the veteran's target was completely free of any hits. The friend remembered that he helped the veteran complete forms because the veteran could not see well with his thick glasses. The friend believed that the veteran was virtually incapacitated without glasses. The May 1996 letter from C. Garcia, a private ophthalmologist, stated that he first saw the veteran in August 1993 when Dr. Cross referred him for retinal evaluation. The veteran reported a 50 percent reduction in visual acuity at night and in dim light. After physical examination, including an electroretinogram, the diagnosis was decreased visual acuity with normal retinal electrophysiology. Dr. Garcia opined that the decreased visual acuity was due to RK scars or to amblyopia present since childhood and that field constriction could also be due to RK. Dr. Garcia opined that there were no medical contraindications to the veteran being exposed to any weather conditions. The veteran and his brother, assisted by a service representative, provided sworn testimony at a regional office hearing in January 1996. The veteran testified that he wore eyeglasses prior to service. He testified that the induction examiner told him that he had bad eyes. Transcript (January 1996) pages 1-2. The veteran was an aircraft mechanic in service. He testified that keeping aircrafts fueled and maintained on a 24-hour basis put a lot of stress and tension on his vision because he had bad eyes to begin with. The veteran believed that his work in the military aggravated his eye condition. Transcript (January 1996), pages 2-4. The military discharge examiner stated that the veteran's eyes had improved a little bit in service but the veteran disagreed. After service, the veteran worked for his father pumping gas for 10 years. He applied for a maintenance job at a plant and could not pass the eye test. A doctor prescribed glasses for the veteran in 1979. Transcript (January 1996), page 3. The veteran's brother testified that the veteran had trouble seeing before service, but after service, his eyes steadily deteriorated until he was legally blind with very little peripheral vision. The veteran's brother believed that the vision problems were service connected because the military accepted the veteran with bad eyes. The veteran showed the hearing officer papers that are not part of the record. The veteran testified that the papers showed the induction medical standards of eyes and that his vision fell below the standards. Transcript (January 1996), page 4. The veteran and his brother testified that it was impossible for the veteran to have bad eyes going into service and good eyes coming out. They testified that the veteran's eyes were bad and continued to deteriorate after service and that the discharge examination report showed that his eyes were bad at discharge. Transcript (January 1996), page 5. The veteran testified that he could not drive or work and that he received SSA disability benefits. He could not drive because he could not pass the driving vision test. The veteran testified that his doctor told him that he would eventually go completely blind. Transcript (January 1996), page 6. The August 1996 letter and December 1997 statement from J. Crawford, O.D., stated that the veteran was seen in June 1993. Dr. Crawford could not improve the veteran's vision beyond 20/60 in both eyes and referred him to an ophthalmologist. The March 1998 statement from Dr. Cross stated that the veteran was last seen in July 1993. The diagnosis was rule out bilateral amblyopia, and the veteran was referred to Dr. Garcia for an electrooculogram and an electroretinogram. Dr. Cross stated that the veteran's vision did not meet the State of Texas requirement for driving. Dr. Avery examined the veteran in July 1993. The veteran reported trouble with glare since his RK surgery. The assessment was mild myopic degeneration and status post RK surgery. The examiner opined that glare was secondary to the old corneal incisions and that the veteran's maculae represented only a small part of the veteran's visual problems. In an April 1996 letter, Dr. Avery opined that the veteran's work did not have anything to do with the anatomical or visual state of his eyes. P. Weisbach, M.D., a private ophthalmologist, examined the veteran in January 1994. The veteran reported severe problems with glare and poor vision. The diagnosis was some type of retinal dystrophy, probably an atypical case of retinitis pigmentosa, of the bilateral eyes. The examiner advised the veteran to consult with a retinal specialist to determine the exact cause of his retinal disorder. Dr. Weisbach's March 1998 letter stated that he examined the veteran and prepared a report for the Texas Rehabilitation Commission in January 1994. The veteran underwent a VA eye examination in December 1998. The assessment was a questionable history of retinal dystrophy and status post RK of both eyes. The examiner noted that a review of Dr. Garcia's letter explaining the veteran's history did not mention retinal dystrophy. Dr. Garcia stated that the veteran had decreased visual acuity with a normal retinal electrophysiologic examination and that decreased vision could be due to the RK scars or to amblyopia present since childhood. The examiner opined that the status post RK was most likely responsible for the veteran's symptoms of glare, photophobia and might contribute to decreased visual acuity. In a March 1999 addendum, the examiner could not determine whether retinal dystrophy might have existed before service because the medical records did not describe a retinal examination. The examiner opined that myopia and amblyopia were most likely present prior to the start of service but myopia, retinal dystrophy, and amblyopia were not worsened by military service. The examiner stated that there was no evidence of retinal dystrophy found during the examination or in Dr. Garcia's examination. Amblyopia is a condition that does not worsen after childhood. Myopia can worsen with age and is detected by examination of visual acuity and refractive error. Criteria The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The claim of entitlement to service connection is not well grounded because the evidence does not include a medical opinion linking a current bilateral eye disability to active service. The medical evidence included current diagnoses of several bilateral eye disabilities. The July 1993 diagnoses included myopic degeneration and bilateral amblyopia, the January 1994 diagnosis was retinal dystrophy, and several examiners in the 1990s noted the veteran's glare problems and decreased visual acuity. The veteran testified that he was legally blind, and in 1993, he failed the vision test to drive in the State of Texas. The medical evidence included an in-service diagnosis of a bilateral eye disability because the induction examination report noted defective vision of undetermined type. Nonetheless, the claim is not well grounded because the medical evidence does not include a nexus opinion relating any of the current bilateral eye disabilities to active service. Initially, the separation examination report and the July 1993 examiner noted myopia. However, refractive error of the eye is not a disease or injury for which service connection may be granted. See 38 C.F.R. § 3.303(c) (1999). The claim is not well grounded because the evidence does not include a medical opinion relating any of the remaining current diagnoses of amblyopia, retinal dystrophy, RK surgery scars, glare problems, or cataracts to active service. Amblyopia was not related to service because the December 1998 examiner stated that amblyopia did not worsen after the veteran's childhood. Retinal dystrophy was not related to service because it first appeared in January 1994 just months after Dr. Garcia noted normal retinal electrophysiology in August 1993. Even if retinal dystrophy had preexisted service, which it did not, the December 1998 examiner opined that it was not aggravated by military service. RK surgery scars and glare problems were not related to service because the RK surgery took place over 20 years after service, and Drs. Rowes, Avery, and Garcia opined that RK scars and cataracts caused the glare problems and decreased visual acuity. In addition, cataracts were not related to service because, in June 1993, Dr. Rowes opined that cataracts were not the sole reason for decreased vision, and he opined that nothing at the examination could be associated with military activity. Finally, the Board notes that the veteran, his brother, and his representative alleged that weather and wind or other conditions in service aggravated the veteran's bilateral eye disability. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the veteran, his brother, and his friend were competent to observe the thickness of the veteran's glasses, his difficulty reading forms, or the results of shooting practice, they were not competent to diagnose the cause of his disability. In any event, Dr. Garcia indicated that weather was not a problem because he stated that there were no medical contraindications to the veteran being exposed to any weather conditions, Dr. Rowes stated that nothing at his examination could be associated with military service, and Dr. Avery stated that the veteran's work was unrelated to the state of his eyes. Although the Board decided the veteran's claim on grounds different from that of the RO, which found the claim well grounded and denied the case on the merits, the veteran has not been prejudiced by the decision. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The March 1995, September 1996, and November 1999 statements of the case and the RO's March 1994, August 1994, and February 1998 letters informed the veteran of the evidence that was needed to establish service connection. The veteran filed numerous lay statements with the RO, provided sworn testimony at a regional office hearing, and received a VA examination. Therefore, the veteran was given adequate notice of the need to submit evidence and opportunities to respond. Accordingly, the claim for service connection for a bilateral eye disability, currently characterized as blindness of both eyes, is not well grounded. The VA cannot assist in any further development of this claim because it is not well grounded. 38 U.S.C.A. § 5107(a); Morton v. West, 13 Vet. App. 205 (1999). Entitlement to a compensable evaluation for residuals of a fracture of the distal phalanx of the fourth finger of the left hand. Factual Background The January 1963 enlistment examination report stated that the veteran's upper extremities and musculoskeletal systems were normal, and no pertinent defects or diagnoses were noted. The May 1963 treatment report stated that the veteran mashed his left fourth finger while attempting to lift a rock into the dumpster. Physical examination revealed direct bruise trauma to the nail, with the nail practically completely loosened from the nailbed with underlying hematoma and some minimal bleeding from the nailbed. The finger was in good position. There was no involvement of nerve, artery, or tendon. X-rays revealed an undisplaced fracture of the tuft of the phalanx. The impression was a fracture of the distal phalanx of the left fourth finger. The veteran was placed in a metal finger split for a 2-week period. The June 1993 examination revealed a clinically healed fracture. X-rays today showed that the fragments were in good alignment with minimal callus laid down. The impression was a healed fracture, and the veteran was discharged from the clinic. The September 1966 separation examination report stated that the veteran's upper extremities and musculoskeletal systems were normal. The examiner noted that the veteran fractured the fourth finger of the left hand in 1963 with no complications and no sequelae. The veteran denied any other history of bone, joint, or other deformity. An August 1993 letter from the Texas Rehabilitation Commission stated that the veteran had applied for SSA disability benefits. The veteran and his brother, assisted by a service representative, provided sworn testimony at a regional office hearing in January 1996. The veteran testified that the fourth finger of his left hand was in pretty good shape and not causing a lot of trouble or pain at the moment. Transcript (January 1996), page 5. The veteran testified that he had no problems with limitation of motion of the finger. Transcript (January 1996), page 8. The representative's July 1996 statement alleged that the distal phalanx of the veteran's fourth finger had pain and loss of movement that warranted a higher evaluation. The veteran underwent a VA hand, thumb, and finger examination in December 1998. The veteran reported that, in 1964, while moving some rocks, he smashed his fourth finger against the dumpster. He had significant pain and was treated locally with a metal splint. His finger eventually healed and he had very few problems with the finger. He had some mild aches when the weather changed. Physical examination revealed that motion of the fourth distal interphalangeal joint of the left hand was 5 degrees of hyperextension to 50 degrees of flexion with no tenderness or pain. The finger was nontender to palpation and sensation was grossly intact. The capillary filled in less than 2 seconds. The nail was completely formed. X-rays demonstrated metallic debris in the ulnar aspect of the tympanum but no bone or joint space abnormalities. The left fourth finger distal phalanx had evidence of a healed fracture in the distal phalanx. The impression was status post fracture of the distal phalanx of the fourth finger of the left hand that was asymptomatic and residual metallic foreign body that was mildly symptomatic in the tip of the fourth finger of the left hand. Criteria In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Regulations require the evaluation of the complete medical history of the veteran's condition. 38 C.F.R. §§ 4.1, 4.2 (1999). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (1999). The veteran's specific finger disability is not listed in the rating schedule. However, when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20 (1999). Therefore, the veteran's finger disability will be evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5227 because ankylosis of a finger, other than the thumb, index, or middle finger, is an analogous disability. Ankylosis of any finger other than the thumb, index, or middle finger, is entitled to a noncompensable rating for the finger on the major or the minor hand. Extremely unfavorable ankylosis will be rated as amputation under Diagnostic Codes 5152-5156. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (1999). Amputation of the ring finger with metacarpal resection (more than one-half the bone lost) is entitled to a 20 percent evaluation for the ring finger on the major or the minor hand. Amputation of the ring finger without metacarpal resection, at proximal interphalangeal joint or proximal thereto, is entitled to a 10 percent evaluation for the ring finger on the major or the minor hand. 38 C.F.R. § 4.71a, Diagnostic Code 5155 (1999). When 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 (1999). Analysis The veteran's claim for a rating in excess of a noncompensable evaluation is well grounded. When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). If the claim is well grounded, the case will be decided on the merits, but only after the Board has determined that the VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. The RO obtained service medical records and medical records from numerous private examiners, including those who examined the veteran for SSA benefits. The veteran was afforded a VA examination. He filed numerous lay statements with the RO and provided sworn testimony at a regional office hearing. Therefore, the VA has fulfilled the duty to assist under 38 U.S.C.A. § 5107(a). A noncompensable rating is warranted because the veteran testified that he had no limitation of motion of the fourth finger of the left hand, and the fourth finger was asymptomatic in December 1998. Even if the fourth finger had ankylosis, which it does not, it would be entitled to a noncompensable rating under the criteria of Diagnostic Code 5227. Accordingly, a noncompensable rating is warranted under Diagnostic Code 5227. A rating is not available under the criteria of Diagnostic Code 5155 because the veteran does not have significant bone loss. Instead, the December 1998 x-rays showed no bone abnormalities. The veteran complained of aches during weather changes, and the December 1998 examiner noted mild symptoms in the tip of the fourth finger. Nonetheless, the medical records showed no treatment for the fourth finger since it healed in June 1963, and the veteran successfully used his fourth finger while working at a service station for 10 years. Accordingly, the veteran's disability picture more nearly approximates the criteria for a noncompensable rating. Finally, extraschedular considerations do not apply in this case because exceptional circumstances have not been claimed or demonstrated. See Smallwood v. Brown, 10 Vet. App. 93, 97-98 (1997); 38 C.F.R. § 3.321(b)(1999). The record does not show that the veteran's fourth finger disability markedly interferes with his employment or causes frequent hospitalizations. ORDER The claim of entitlement to service connection for a bilateral eye disability, currently characterized as blindness of both eyes, is denied. The claim of entitlement to a compensable evaluation for residuals of a fracture of the distal phalanx of the fourth finger of the left hand is denied. V. L. Jordan Member, Board of Veterans' Appeals