Citation Nr: 0004045 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 97-29 193A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for service-connected bilateral pars planitis and bilateral cataracts. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from January 1988 to May 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 1996 rating decision from the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bilateral pars planitis and right eye cataract with a 10 percent evaluation, effective May 7, 1996. In October 1998, the Board granted the veteran's claim of entitlement to service connection for a cataract of the left eye. By rating decision in March 1999, the RO granted an increased evaluation of 20 percent for service-connected bilateral pars planitis and bilateral cataracts, effective May 7, 1996. In the October 1998 decision, the Board also remanded the instant claim for further development to include obtaining medical treatment records and a VA examination. FINDING OF FACT The veteran's corrected visual acuity for distance, taking the worst of the examinations of record, is 20/80 in the right eye and 20/40 in the left eye, with reports of pain, required rest, and some impairment with daily activities. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for service-connected bilateral pars planitis and bilateral cataracts have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.20, 4.83a, 4.84a, Diagnostic Codes 6000, 6079, Table V (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records show diagnosis of pars planitis in February 1990, with continued treatment throughout service. A cataract of the right eye was noted in December 1991. A periodic service examination in January 1993 noted visual acuity of right 20/40 corrected to 20/20 and left 20/30 corrected to 20/20. Pars planitis, vitreal opacity, and a large fibrotic scar of the right eye were reported. A Medical Evaluation Board report, dated in April 1996, noted diagnoses of bilateral pars planitis, small posterior subcapsular cataract of the right eye, and visually insignificant posterior subcapsular change in the left eye. The veteran filed an initial claim for VA benefits for bilateral pars planitis and cataracts in June 1996. A VA examination was conducted in July 1996. The corrected visual acuity in the right eye was 20/40 for distance and J6 near, an in the left eye was 20/40+ for distance and J3+ near. The lens of the right eye had a posterior subcapsular cataract of approximately gray +2. The left eye lens was clear. The examiner reported diagnoses of pars splenitis, right eye greater than left, posterior subcapsular cataract in the right eye, and epiretinal membrane of the right eye. The examiner stated that pars splenitis was a chronic inflammatory disease of the eye with unknown etiology, and could cause blindness in the long term, either secondary to cataracts or secondary to the chronic inflammation. An addendum to this examination, dated in October 1997, noted no evidence of a cataract of the left eye. The examiner noted that small cataract was reported on dictation from the July 1996 examination. The examiner reported that the fundoscopic lamp in the examining room was not bright enough to get a very good look at the lens. By rating decision in October 1996, the RO granted service connection for bilateral pars planitis and right eye cataract with an evaluation of 10 percent, effective May 7, 1996. The RO further denied service connection for left eye cataract. Treatment records from June 1997 and July 1997 noted corrected visual acuity of 20/50 to 20/70 in the right eye and 20/20 in the left eye. In August 1997 corrected visual acuity in the right eye was 20/80 distance and J3 near, and in the left eye was 20/30 distance and J1 near. Diagnoses of bilateral pars planitis and bilateral posterior subcapsular cataracts (right greater than left) were reported. A VA examination was conducted in October 1997. Corrected visual acuity in the right eye was 20/40 distance and J2 near, and in the left eye 20/25 distance and J2 near. Diagnoses of bilateral pars planitis and right eye posterior subcapsular cataract were noted. In her VA Form 9, substantive appeal, received in October 1997, the veteran stated that her eye disease limited her daily functioning in both work and home environments. She reported that she was required to take several rest periods for her eyes and was limited in the amount of reading and detailed functions she could perform. She noted that she was forced to miss a minimum of three days of work per month due to her eye condition. In a letter submitted with the veteran's substantive appeal, the veteran's spouse, an active duty serviceman, stated that the veteran's reduced visual acuity resulted in difficulties for her in driving and taking care of their small child. He stated that her night vision was virtually non-existent. He reported that the veteran missed an average of 30 hours of work per month resulting in a financial loss to the family. Treatment records from March to June 1998 noted corrected visual acuity of 20/40 in the right eye and 20/25 in the left eye. A right eye posterior subcapsular cataract and pars planitis were noted. In October 1998, the Board granted the veteran's claim of entitlement to service connection for a cataract of the left eye. The Board also remanded the claim for an increased evaluation for bilateral pars planitis and right eye cataract further development to include obtaining medical treatment records and a VA examination. By rating decision in March 1999, the RO granted an increased evaluation of 20 percent for service-connected bilateral pars planitis and bilateral cataracts, effective May 7, 1996. In November 1998, the RO requested that the veteran identify all health care providers who had treated her eye condition since October 1997. In a statement, received in December 1998, the veteran reported that she had received treatment from VA doctors only since October 1997. A VA examination was conducted in February 1999. The veteran reported decreased visual acuity with occasional pain and photophobia since her last examination in June 1998. Corrected visual acuity in the right eye was 20/50 distance and J10 near, and in the left eye 20/20 distance and J1 near. The examiner reported impressions of pars plana (right eye greater than left eye), posterior subcapsular cataract of the right eye. The examiner stated that the pars plana appeared to be stable without any active inflammation at that time. The examiner further stated that he felt that the right eye cataract was the cause of the veteran's decreased vision. The examiner noted that the veteran's visual acuity was significantly reduced and the veteran found decreased ability for normal day to day activities. The examiner opined that the veteran's ability to perform average employment in a civil occupation was greatly reduced because of her current condition. II. Analysis When a veteran is awarded service connection for a disability and appeals the RO's rating determination, the claim continues to be well grounded as long as the claim remains open and the rating schedule provides for a higher rating. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). 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). 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). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the issue is the assignment of an initial rating for a disability, following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on facts found, and the Board must consider all evidence of record from the time of the veteran's application. Fenderson v. West, 12 Vet. App. 119 (1999). Where 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). For purposes of evaluation, the best distant vision obtainable after best correction by glasses. 38 C.F.R. § 4.75 (1999). Evaluations are determined by the intersection of the horizontal row appropriate for one eye and the vertical column appropriate to the other eye from Table V. 38 C.F.R. §§ 4.83a, 4.84a, Table V (1999). Preoperative cataracts are evaluated on the basis of impairment of vision. 38 C.F.R. § 4.84a, Diagnostic Code 6028 (1999). When an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). The Board finds that, although there is no diagnostic code for the veteran's pars planitis, the functions affected, anatomical localization and symptomatology are closely analogous to the manifestations of uveitis under Diagnostic Code 6000. See 38 C.F.R. § 4.20. Chronic uveitis is evaluated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. Minimum evaluation during active pathology is 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6000 (1999). 38 C.F.R. § 4.25 (1999) requires that, except as otherwise provided, all disabilities arising from a single disease entity are rated separately. The exception to this rule is when assignment of separate disability ratings would constitute pyramiding. The pertinent regulation states, "[T]he evaluation of the same disability under various diagnoses is to be avoided....[T]he evaluation of the same manifestation under different diagnoses is to be avoided." 38 C.F.R. § 4.14 (1999). The "critical element" in determining whether separate entities may be assigned for manifestations of the same injury is whether there is overlapping or duplication of symptomatology between or among the disorders. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). As the rating criteria for both the veteran's disabilities - bilateral pars planitis and bilateral cataracts - is based on visual acuity, to grant separate evaluations for these two disabilities would result in pyramiding. Examinations of record show corrected distance vision of the right eye of 20/40 to 20/80. Examinations of record show corrected distance vision of the left eye of 20/20 to 20/40. The appellant's eye disabilities are currently evaluated at 20 percent. Using Table V, and the worst of the examination results, the measurement of the veteran's visual acuity does not meet the schedular requirements for an evaluation in excess of 20 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6079. Although noting the veteran's reports of pain, resting requirements and impairment of daily activities, the Board finds that the evidence preponderates against a schedular evaluation in excess of 20 percent. ORDER Entitlement to an evaluation in excess of 20 percent for service-connected bilateral pars planitis and bilateral cataracts is denied. REMAND The Board notes that the veteran and her spouse reported that she missed several days of work per month due to her service- connected eye disabilities and that such resulted in a financial hardship to her and her family. In addition, the VA examiner in February 1999 indicated that the veteran's visual acuity decreased her ability for normal day to day activities and her ability to perform average employment in a civil occupation. The Board finds that such raises the issue of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1999). The matter of entitlement to an extraschedular rating for this disorder pursuant to 38 C.F.R. § 3.321(b)(1) was not considered by the RO. The Board may not grant a rating under this provision in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. After undertaking any additional development deemed necessary with respect to the veteran's claim for an extraschedular evaluation, the RO should consider whether to submit the claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, to authorize an extra-schedular evaluation. Documentation reflecting this consideration and any further development of the record should be associated with the claims file. 2. If the claim remains denied, the veteran should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites any applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. The veteran should then be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. John E. Ormond, Jr. Member, Board of Veterans' Appeals