Citation Nr: 1111674 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 06-30 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable rating for trace cataracts. 2. Entitlement to an initial compensable rating for peripheral vascular disease, right lower extremity. 3. Entitlement to an initial compensable rating for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1959 to October 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the September 2005 rating decision, the RO denied service connection for diabetic retinopathy and granted service connection and assigned an initial noncompensable rating for trace cataracts, as secondary to service-connected diabetes mellitus, effective February 16, 2005, peripheral vascular disease, right lower extremity, as secondary to service-connected diabetes mellitus, effective February 27, 2004, and erectile dysfunction, as secondary to service-connected diabetes mellitus, effective April 1, 1991. In November 2009, the Board remanded the claims for additional development. In an October 2010 rating decision, the RO granted service connection for diabetic retinopathy, thus satisfying that portion of the appeal in full. The issue of special monthly compensation for loss of use of a creative organ has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's trace cataracts are manifest by a mild loss of vision, correctable to 20/40 in both eyes. 2. The Veteran's peripheral vascular disease, right lower extremity, is manifest by occasional pain but no claudication. 3. The Veteran's erectile dysfunction is manifest by a loss of erectile power but no deformity. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for trace cataracts have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.84a, Diagnostic Codes 6028, 6079 (2008) (as in effect prior to the December 10, 2008 revision). 2. The criteria for a compensable rating for peripheral vascular disease, right lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7115 (2010). 3. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.115b, Diagnostic Code 7255 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claims are deemed to have arisen from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. 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 VCAA. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file. VA Medical Center and private treatment records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. General Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Trace Cataracts The Board acknowledges that the portion of the rating schedule that addresses disabilities of the eyes was revised effective December 10, 2008. Only claims received on or after December 10, 2008 will be evaluated under the new criteria. 73 Fed. Reg. 66543-54 (Nov. 10, 2008). The Veteran's claim was received prior to December 10, 2008 and therefore, the revised regulations are not for application. The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. § 4.75 (2008). The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a (2008). Cataracts, senile, and others, are rated on impairment of vision and aphakia. 38 C.F.R. § 4.84a, Diagnostic Code 6028 (2008). A noncompensable disability rating is warranted for impairment of central visual acuity when vision in both eyes is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Code 6079 (2008). On VA examination in July 2005, the Veteran complained of blurry vision. He denied any distorted vision, diplopia, visual field defect, history of eye injury, watery eyes, or eye swelling. The examiner indicated that uncorrected visual acuity at distance in both eyes was 20/30. Uncorrected visual acuity at near in both eyes was 20/60. Corrected visual acuity at distance in both eyes was 20/25. Near corrected visual acuity was 20/25. The examiner found that confrontation visual fields, extraocular movements, external examination, pupil examination, intraocular pressure, and anterior segment in both eyes were normal. Lens examination in both eyes revealed trace nuclear sclerosis. Both eyes had normal macula, vessels, and periphery. The examiner further noted that both eyes had no suspicious appearing Goldmann visual field. A VA optometry consult note from July 2006 reveals that the Veteran's vision was 20/25 in the right eye and 20/25-2 in the left eye. In November 2006, his vision was noted to be 20/25 in the right eye and 20/30+ in the left eye. In April 2007, his vision was noted to be 20/25- bilaterally. Findings of 20/20 in the right eye and 20/25 in the left eye were recorded in July 2007. Notes from June, August, and October 2008 contains readings of 20/25 in the right eye and 20/25-2 in the left eye. In October 2009, a VA optometrist recorded readings of 20/40+ in the right eye and 20/40+ in the left eye. On VA examination in June 2010, the examiner recorded that uncorrected visual acuity of the right eye at distance was 20/20, left eye was 20/20-2. Uncorrected visual acuity at near was 20/200 in the right eye and 20/200 in the left eye. Corrected visual acuity at distance did not change. Corrected visual acuity at near in the right eye was 20/20 and 20/20 in the left eye. Visual fields were found to be full to finger count in both eyes, and extraocular motility was full range of motion in both eyes. The external examination was found to be within normal limits, and the pupils were equal, round, and reactive. It was noted that the lenses were remarkable for a +1 nuclear sclerotic cataract in both eyes. Goldman visual fields showed full visual fields without constriction of glaucomatous pattern. Based on the evidence of record, the Board finds that the Veteran's trace cataracts do not warrant a compensable rating at any time during the period of appeal. In this regard, the Board notes that taking the VA outpatient record of October 2009 findings as the most favorable for the Veteran, the right eye vision of 20/40+ and left eye vision of 20/40+ warrants a noncompensable rating under Diagnostic Code 6079. As there have been no higher recordings of corrected visual acuity throughout the period of appeal, a higher rating is not warranted. Diagnostic Code 2069 is not for application as there is no indication that the Veteran has aphakia. Peripheral Vascular Disease, Right Lower Extremity The Veteran's peripheral vascular disease, right lower extremity, has been evaluated under Diagnostic Code 7115, for thrombo-angitis obliterans (Buerger's Disease). Under Diagnostic Code 7115, a 100 percent evaluation is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. A 60 percent evaluation is warranted for claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. A 40 percent evaluation is warranted for claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. A 20 percent evaluation is warranted for claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. See 38 C.F.R. § 4.104, Diagnostic Code 7115. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 In March 2004, the Veteran underwent an arteriogram for peripheral vascular disease at a private facility. It was noted that the profunda and superficial femoral arteries were widely patent. The popliteal artery was unremarkable. There were diffuse small vessel calcifications below the right knee. The examiner also noted some scattered mild proximal disease at the anterior tibial artery, and the tibial peroneal trunk showed some mild narrowing distally. The posterior tibial artery became occluded in the mid-calf but showed some reconstitution by peritoneal collateral distally. The peritoneal artery was patent to the level just above the right ankle. There was some retrograde filling of the plantar arch. On VA examination in July 2005, the Veteran denied pain or muscle cramps in the right leg with exertion. The examiner noted a distal loss of hair on the right leg and indicated that pedal pulses were not detectible. The diagnosis was peripheral vascular disease. The examiner noted that there were no symptoms of claudication. In his September 2006 substantive appeal, the Veteran reported pain in his right leg after walking any great distance or mowing the lawn. He worried about getting any kind of sore on his right leg or foot. He said that if he stood for a short period of time, he could feel a loss of blood in his feet. A VA treatment note from October 2008 reflects that the Veteran complained of occasional cramping of his calves at night. The examiner indicated that the Veteran denied claudication. On VA examination in June 2010, the examiner wrote that the Veteran had no pain in his right lower extremity and was able to walk well. The Veteran reported that he had to take his time performing activities, but that he still worked five days a week and was able to mow his own yard with a push more. He remarked that he became short of breath more easily than in times past. The examiner observed hair loss on the right lower extremity. There were palpable pulses both to the posterior tibialis and dorsalis pedis, and his right foot was warm to the touch. The examiner opined that the Veteran was doing well with his peripheral vascular disease with no residual issues. Based on the evidence of record, the Board finds that the Veteran's peripheral vascular disease of the right lower extremity does not warrant a compensable rating at any time during the period of appeal. A review of the evidence shows that the Veteran has not experienced claudication at any time pertinent to the current appeal due to his peripheral vascular disease of the right lower extremity. VA examiners in July 2005 and October 2008 specifically noted the absence of claudication, and the June 2010 examiner opined that there were no residual issues. Additionally, although the Veteran has indicated that he experiences pain in his right leg, he has never claimed that he experiences actual claudication due to his peripheral vascular disease of the right lower extremity. As the evidence does not show that the Veteran experiences the symptom of claudication on walking more than 100 yards, a compensable evaluation is not warranted for peripheral vascular disease of the right lower extremity. See 38 C.F.R. §§ 4.31, 4.104, Diagnostic Code 7115. Erectile Dysfunction In regard to the claim for an initial compensable rating for erectile dysfunction, the Board notes that erectile dysfunction is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. As such, the Veteran's erectile dysfunction can be rated pursuant to Diagnostic Code 7522, which provides a 20 percent rating for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. VA outpatient records from October 1996 reflect that the Veteran had difficulty maintaining an erection. It was noted that his testes were normal. In June 1998, a VA examiner prescribed Viagra. The examiner noted that the Veteran had been placed on a vacuum erection device with moderate satisfaction. In September 2006, the Veteran remarked that he had a nonexistent sex life with his wife. A VA outpatient record from February 2009 reflects that the Veteran had normal male external genitalia. Later in February 2009, the Veteran told a VA examiner that he had difficulty getting and keeping erections. In May 2009, the Veteran was prescribed Levitra. In June 2010, the Veteran renewed his prescription for Levitra. On VA examination in June 2010, the Veteran stated that he had previously used a penile pump which did not help his erectile dysfunction. He asserted that Viagra and Levitra had given him minimal improvement. He said that he was able to only have a very limited erection, even with medication. The examiner wrote that examination of the penis showed normal external male genitalia with normal, descended testicles bilaterally. The diagnosis was erectile dysfunction with poor response to oral medications. Based on the evidence of record, the Board finds that the Veteran's erectile dysfunction does not warrant a compensable rating at any time during the period of appeal. A review of the evidence shows that while the Veteran clearly has difficulty getting and maintaining an erection, he has not had a penile deformity at any time pertinent to the current appeal. VA examiners in February 2009 and June 2010 noted that the Veteran had normal external male genitalia. Additionally, although the Veteran has indicated that he has trouble getting and maintaining an erection, he has never claimed that he has an actual penile deformity in addition to the erectile dysfunction. As the evidence does not show that the Veteran experiences the symptom of a penile deformity in addition to the erectile dysfunction, a compensable evaluation is not warranted for erectile dysfunction. See 38 C.F.R. §§ 4.31, 4.115(b), Diagnostic Code 7522. As noted above, the Board reiterates that the issue of special monthly compensation for loss of use of a creative organ has not been adjudicated by the RO and is referred back for appropriate development and adjudication. Conclusion The Board has carefully considered the Veteran's statements and testimony regarding how the symptoms of his trace cataracts, peripheral vascular disease of the right lower extremity, and erectile dysfunction affect his daily activities and life. However, pain and some interference with daily activities are accounted for in the Rating Schedule, as the Rating Schedule is designed to compensate average impairment in earning capacity resulting from impairment. See 38 C.F.R. § 4.1 (2010). Even considering the Veteran's statements, compensable evaluations for the claimed disabilities are unfortunately still not warranted, as the appropriate diagnostic criteria have not been met. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service- connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As such, referral for extraschedular consideration is not in order here. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's claimed disabilities, pursuant to Fenderson, and that the claims for higher rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. (CONTINUED ON NEXT PAGE) ORDER An initial compensable rating for trace cataracts is denied. An initial compensable rating for peripheral vascular disease, right lower extremity is denied. An initial compensable rating for erectile dysfunction is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs