Citation Nr: 0915260 Decision Date: 04/23/09 Archive Date: 04/29/09 DOCKET NO. 08-01 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for glaucoma of the left eye. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Jaeger, Counsel INTRODUCTION The Veteran had active military service from May 1986 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. Glaucoma of the left eye is manifested by corrected visual acuity of, at worst, 20/25 in the right eye and 20/30 in the left eye, and a scotoma in the superior hemifield, without evidence of any additional impairment of visual acuity or field loss. 2. The Veteran failed to report, without good cause, for scheduled VA examinations that were necessary to evaluate his impairment of field vision. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for glaucoma of the left eye have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.655, 4.84a, Diagnostic Code 6013 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board observes that VCAA notice had also previously required that the claimant be requested to provide any evidence in her or his possession that pertains to the claim, see Pelegrini v. Principi, 18 Vet. App. 112 (2004); however, for claims pending on or after May 30, 2008, as is the case here, 38 C.F.R. § 3.159 has been amended to eliminate such requirement. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini, the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. The Veteran was provided a VCAA letter in September 2006 that advised him of the evidence and information necessary to substantiate his underlying service connection claim, his and VA's respective duties in obtaining evidence in support of such claim, and the evidence and information necessary to establish a disability rating and an effective date. Thereafter, in a January 2007 decision, service connection was granted for glaucoma of the left eye and an initial 10 percent disability rating was assigned, effective August 29, 2006, the date VA received the Veteran's claim. Thereafter, he entered a notice of disagreement as to the propriety of the initially assigned disability rating. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As such, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under the VCAA with respect to the Veteran's initial rating claim. Relevant to the duty to assist, all identified VA treatment records have been obtained and considered. Additionally, the Veteran was provided with VA examinations in December 2006 and October 2008 in order to adjudicate his initial rating claim. The Board notes that the Veteran failed to report for visual field tests that were scheduled in conjunction with the VA examinations. In this regard, a September 2006 letter advised the Veteran that, if he were scheduled for a VA examination and failed to report without good cause, the claim will be rated based on the evidence of record. Such further informed him that, without the examination, his claim may be denied or he would receive less than the maximum benefit to which may be entitled. In December 2006, the Veteran attended a scheduled VA eye examination; however, in the January 2007 rating decision, he was notified that he failed to report for visual field testing scheduled for January 2007. In the Veteran's notice of disagreement and substantive appeal, he indicated that he called to reschedule his examination, but was never notified of the new appointment time. As such, he requested that he be afforded a new examination. Thereafter, in October 2008, the Veteran attended a scheduled VA eye examination; however, he again failed to report for visual field testing scheduled for October 2008 and November 2008. As evidenced by documentation in the claims file, the Veteran had been scheduled for visual field testing (Goldman Bowl Testing) on October 22, 2008, but he failed to report. He was rescheduled for November 5, 2008, and November 18, 2008, but again failed to report. It was noted by personnel at the VA Medical Center in Miami, Florida, that the Veteran had been contacted several times by certified letter regarding his appointments. Furthermore, it was noted by the VA examiner that he had spoken to the Veteran the day before regarding his appointment for November 18, 2008, but the Veteran again failed to show. He has not offered good cause for his failure to report for these numerous scheduled VA examinations. The Veteran was advised in the December 2008 supplemental statement of the case that he had failed to report for his visual field testing; however, to date, no correspondence regarding such failure to report has been received from the Veteran. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). VA regulations provide that, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied; however, in fairness to the Veteran, as he did report for two scheduled VA examinations, the Board will proceed to evaluate the claim based on the evidence currently of record. See 38 C.F.R. § 3.655. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's glaucoma of the left eye. Also, in Fenderson, the Court discussed the concept of "staged ratings," finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning initial staged ratings for service-connected glaucoma of the left eye. The Veteran's service-connected glaucoma of the left eye is currently assigned a 10 percent rating under 38 C.F.R. § 4.84a, Diagnostic Code 6013. The Veteran contends that his left eye disability is worse than the currently assigned evaluation and, therefore, he is entitled to a rating in excess of 10 percent for such disability. Diagnostic Code 6013 provides that simple, primary, and noncongestive glaucoma is rated on impairment of visual acuity or field loss, with a minimum rating of 10 percent. As will be discussed below, impairment of central visual acuity is evaluated from 0 to 100 percent under Diagnostic Codes 6061 through 6079. Ratings for impairment of field vision are evaluated from 10 to 100 percent under Diagnostic Codes 6080 and 6081. The best distant vision obtainable after best correction by glasses will be the basis of rating, except in cases of keratoconus in which contact lenses are medically required. 38 C.F.R. § 4.75. As will be discussed below, the Veteran's glaucoma of the left eye is manifested by corrected visual acuity of, at worst, 20/25 in the right eye and 20/30 in the left eye, and a scotoma in the superior hemifield, without evidence of any additional impairment of visual acuity or field loss. A November 2006 VA treatment record reflects that the Veteran's best corrected visual acuity was 20/25 in the right eye and 20/20 in the left eye. His intraocular pressure was 15 with a recheck of 14 in the right eye and 13 with a recheck of 12 in the left eye. Slit lamp examination revealed quiet anterior chambers bilaterally. At the Veteran's December 2006 VA examination, he denied any symptoms, visual or otherwise, of the left eye. He indicated that he treated his eyes with drops. There were no periods of incapacitation due to eye disease and there was no history of congestive or inflammatory glaucoma. The Veteran did not have keratoconus. Central visual acuity of the bilateral eyes showed uncorrected far vision of 20/150; corrected far vision of 20/20; uncorrected near vision of 20/40; and corrected near vision of 20/20. There was not more than 4 diopters of spherical correction between the eyes. Visual acuity was not worse than 5/200. Neither eye had been removed. There was a visual field defect of the presence of scotomas in both eyes. Such were not centrally located. The scotoma in the right eye was in the nasal arcuate and the scotoma in the left eye was in the superior hemifield. The eye pressure in both eyes was 19. There was no nystagmus, ptosis, lagophthalmos, symblepharon, diplopia, or strabismus. The function of both lacrimal ducts was normal and neither lens had been removed. There were no other lens abnormalities or residuals of an eye injury. There was no loss of the eyebrows or eyelashes. Fundoscopic examination was abnormal. The optic nerve of the right eye was 0.7V/0.65H with a vertically elongated nerve and cupping. The rim was intact without notching. The optic nerve of the left eye was 0.95V/H with complete rim loss inferior and temporal, no shunt vessel, and a deep cup. Vessels were normal caliber in both eyes. The macula was flat in both eyes with no findings relevant to the left eye. There were no abnormal findings relevant to the fundus, media, and periphery of both eyes. Findings on slit lamp examination were normal. The Humphrey visual field test conducted in September 2006 showed that the left eye was reliable. There superior arcuate nasal and temporal were dense with mild fixation involvement. There were minimal inferior defects. Macular degeneration was -14.14. Retinal nerve fiber layer showed severe thinning 360 of the left eye. Pachymetry was 520 microns in both eyes. The diagnosis was glaucoma of the left eye. The examiner noted that the Veteran had progressive glaucoma with worsening visual field and intact central acuity. A June 2007 VA treatment record reflects that the Veteran denied rapid visual changes. At the Veteran's October 2008 VA examination, he complained of watering, field cut, blurring, and impaired night vision of both eyes. He indicated that he treated his eyes with drops. There were no periods of incapacitation due to eye disease and there was no history of congestive or inflammatory glaucoma. The Veteran did not have keratoconus. Central visual acuity of the right eye showed uncorrected far vision of 20/150; corrected far vision of 20/20; uncorrected near vision of 20/25; and corrected near vision of 20/20. Central visual acuity of the left eye showed uncorrected far vision of 20/150; corrected far vision of 20/30; uncorrected near vision of 20/25; and corrected near vision of 20/25. There was not more than 4 diopters of spherical correction between the eyes. Visual acuity was not worse than 5/200. Strabismus and diplopia were not present. Findings on slit lamp examination were normal. The Veteran had mild blepharitis and melanosis diffusely. The lens of both eyes had trace nuclear sclerosis. Neither lens had been removed nor were there other lens abnormalities. There was no loss of the eyebrows or eyelashes. Fundoscopic examination was abnormal. The optic nerve of the right eye was 0.75V/0.7H with thinner inferiorly with pink rim remaining. The optic nerve of the left eye was 0.95 with severe cupping with pale remaining sliver of the rim. Vessels were normal caliber and course in both eyes. The macula was centrally flat in both eyes with no findings relevant to the left eye. There were no abnormal findings relevant to the fundus, media, and periphery of the left eye. There was no visual field defect. A scotoma was present in the left eye, but was not centrally located. The Veteran had abnormal accommodation of presbyopia. The eye pressure in the right eye was 16 and in the left eye was 15. There was no nystagmus, ptosis, lagophthalmos, or symblepharon. The function of both lacrimal duct was normal and there were no other lens abnormalities or residuals of an eye injury. Neither eye had been removed. The examiner diagnosed severe glaucoma, greater in the left eye than the right eye. As indicated previously, Diagnostic Code 6013 provides that the Veteran's glaucoma of the left eye is rated on impairment of visual acuity or field loss. Relevant to impairment of visual acuity, the Board finds that his corrected visual acuity results in, at worst 20/25 in the right eye and 20/30 in the left eye. Specifically, the Veteran's corrected visual acuity in November 2006 was 20/25 in the right eye and 20/20 in the left eye. In December 2006, it was 20/20 bilaterally, and, in October 2008, 20/20 in the right eye and 20/30 in the left eye. Under Diagnostic Codes 6061 through 6079, such impairment in visual acuity does not result in a compensable rating. Therefore, when evaluating the Veteran's left eye disability under the criteria relevant to impairment of visual acuity, he is not entitled to a rating in excess of 10 percent. Pertinent to visual field loss, the evidence of record demonstrates that the Veteran's glaucoma of the left eye is manifested by a scotoma in the superior hemifield. Such was noted to not be centrally located, nor is there any evidence that such is large. Therefore, the Veteran is not entitled to a separate or increased rating under Diagnostic Code 6081, which provides for a large or centrally located scotoma to receive a minimum rating of 10 percent. Relevant to Diagnostic Code 6080, which provides the criteria for evaluating impairment of field vision, the Board finds that there is no evidence of any such impairment. In this regard, the Board notes that the Veteran failed to report for visual field testing. See 38 C.F.R. § 3.655; Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991) (noting that that failure to cooperate by attending a requested VA examination may result in an adverse determination). Findings pertinent to any impairment of the visual field which would have resulted from such evaluations cannot be considered and the remainder of the evidence is negative for any impairment of the Veteran's field vision. Therefore, when evaluating the Veteran's left eye disability under the criteria relevant to impairment of field vision, he is not entitled to a rating in excess of 10 percent. Additionally, the Board has reviewed the various diagnostic codes in conjunction with the evidence of record, but finds that there is no other rating criteria for which rating by analogy would be appropriate. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service- connected disability of glaucoma of the left eye; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In a June 2007 VA treatment record, it was noted that the Veteran had been employed as a management and information systems technician, but was not currently working. At the Veteran's December 2006 and October 2008 VA examinations, the examiner noted that there were no significant effects of his glaucoma of the left eye on his occupation. As such, the Board finds no evidence that the Veteran's service-connected glaucoma of the left eye presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The objective medical evidence of record shows that manifestations of the Veteran's service-connected glaucoma of the left eye do not result in a marked functional impairment in any way or to a degree other than that addressed by VA's Rating Schedule. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for glaucoma of the left eye. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating in excess of 10 percent for glaucoma of the left eye is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs