Citation Nr: 0810629 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-10 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for defective vision in the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his daughters, P. T. and L. B. ATTORNEY FOR THE BOARD D. M. Ames, Associate Counsel INTRODUCTION The veteran had active military service from December 1942 to January 1946. This appeal to the Board of Veterans' Appeals (Board) is from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. After advancing it on the docket, the Board remanded this case in August 2007 for further development. The record shows that service connection was originally established for blindness in the left eye in February 1946, and that an initial 30 percent rating was assigned. In April 1947, however, the RO determined the initial rating was clearly and unmistakably erroneous. The revised decision was based upon the veteran's service medical records (SMRs), which showed that at the time of his induction into the military, he could only count fingers at one foot distance using his left eye, and that at the time of his separation from the military he could only perceive light in this eye. The RO reduced the rating for his left eye disability to the noncompensable, i.e., zero percent level based upon the degree his disability was aggravated by his military service, meaning the degree of additional disability he had above that existing prior to entering the military. See 38 C.F.R. § 4.22 (2007). His disability evaluation has remained noncompensable since that April 1947 decision. In support of his claim for a higher rating for this disability, the veteran and his daughters submitted evidence and testified at a Travel Board hearing that he did not have a left eye disability prior to entering the military. The undersigned Veterans Law Judge advised them at the hearing that, if they wanted to contest the April 1947 RO decision, the veteran or his representative needed to submit a separate claim alleging clear and unmistakable error (CUE) in that earlier decision in order to collaterally attack it and possibly see it overturned. See 38 C.F.R. § 3.105(a). There is no indication the veteran has specifically alleged CUE in the April 1947 RO decision, and therefore, the Board cannot address whether the April 1947 decision was correct. The only issue before the Board is whether his left eye disability meets the criteria for a higher, compensable rating. As it stands, his noncompensable evaluation means the RO determined his pre-existing eye disability was no worse after his military service than it was prior to his enlistment. FINDING OF FACT The veteran's left eye disability was not aggravated to a compensable degree by his in-service eye injury. CONCLUSION OF LAW The criteria are not met for a compensable rating for the left eye disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.306, 4.1-4.7, 4.20, 4.21, 4.84a, Diagnostic Code (DC) 6009 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of letters dated in March 2003, February 2005, and August 2007, the RO and Appeals Management Center (AMC) advised the veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Consider also that the RO issued a VCAA notice letter prior to initially adjudicating the claim, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The March 2003 VCAA letter did not specifically ask the veteran to provide any evidence in his possession pertaining to his claim. Id. at 120-21. However, the more recent February 2005 VCAA letter did make this specific request, and, in any event, VA's Office of General Counsel has indicated requiring VA include such a request as part of the notice provided to a claimant under those provisions is obiter dictum and, therefore, not binding on VA. See VAOPGCPREC 1-2004 (Feb. 24, 2004) (OGC discussed this in response to the holding in Pelegrini v. Principi, 17 Vet. App. 183 (2002) (Pelegrini I), but the Court used basically the same language in Pelegrini II, so it is equally applicable). The Board is bound by the precedent opinions of VA's General Counsel, as the Chief Legal Officer of the Department. See 38 U.S.C.A. § 7104(c) (West 2002). It equally deserves mentioning that, since providing the additional VCAA notice in February 2005 and August 2007, the RO (AMC) has gone back and readjudicated the claim in the January 2008 supplemental statement of the case (SSOC), considering the additional evidence that had been received since the initial rating decision in question, statement of the case (SOC), and prior SSOC. This is important to point out because the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that a SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 07-7130 (Fed. Cir. Sept. 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The RO has ultimately provided all notice required by § 5103(a). Therefore, any failure to make specific request in the initial, March 2003 VCAA letter is non-prejudicial, i.e., harmless error. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102. Moreover, neither the veteran nor his representative has made any showing or allegation that the content of the VCAA notice resulted in any prejudice to the veteran. But see Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007) (where the Federal Circuit Court held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), concerning any element of a claim, is presumed prejudicial and that once an error is identified, the burden shifts to VA to show it was harmless). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Here, because the Vasquez-Flores decision was not issued until very recently, the veteran has not received VCAA notice specifically tailored to comply with it. And, as mentioned, in Sanders and Simmons, the Federal Circuit Court held that this type of notice error is presumed prejudicial and that it is incumbent upon VA, not the veteran, to show why the error is nonprejudicial. VA can show the error is harmless by demonstrating why it does not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, No. 05- 0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication because the diagnostic criteria used to determine the relative severity of the veteran's left eye disability were provided in the February 2005 SOC. A reasonable person could be expected to read and understand these criteria, and that evidence to show his disability met the requirements for a higher rating was needed for an increase to be granted. Also keep in mind his claim was readjudicated twice, in the July 2005 and January 2008 SSOCs, after additional evidence was received. So, as already alluded to, those readjudications effectively "cured" the inadequate notice or lack of notice prior to the initial adjudication of his claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In any event, the Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various postdecisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. It further deserves mentioning that, in a March 2006 letter, the veteran was informed of the disability rating and effective date elements of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). With respect to the duty to assist, the RO obtained the veteran's service medical records, VA medical records, private medical records, and the reports of his VA compensation examinations. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board is also satisfied as to compliance with its August 2007 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2006). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). If two evaluations are potentially applicable, the higher one 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. A recent decision of the Court has held that in determining the present level of a disability for any increased-evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran asserts that he is entitled to a higher rating for his service-connected left eye disability, currently assigned a noncompensable evaluation by analogy under Diagnostic Code (DC) 6099-6009, for an unhealed injury of the eye. 38 C.F.R. §§ 4.20, 4.84a. Under DC 6009, the rater is instructed to rate the disability from 10 to 100 percent based upon impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional 10 percent during continuance of active pathology. The minimum available rating during active pathology is 10 percent. 38 C.F.R. § 4.84a. The veteran's induction physical examination from December 1942 indicates that, using his left eye, he could only count an examiner's fingers from one foot away. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation may be rebutted only by clear and unmistakable evidence. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service. In this case, the presumption of soundness is rebutted because it is expressly noted in the report of the veteran's December 1942 military entrance examination that he could only count the fingers of the examiner from one foot away with his left eye. Therefore, there is clear and unmistakable evidence that his disability existed prior to service. The issue before the Board is to what extent his injury in service aggravated this pre-existing disability - and, more to the point, whether he has a compensable degree of visual loss over and beyond the extent of decreased vision he had prior to service. In August 2007, the Board remanded this case so the veteran could undergo a VA eye examination with the specific purpose of determining whether his in-service left eye injury aggravated his pre-existing left eye disability. He had the VA eye examination in November 2007. The examiner reviewed the veteran's claims folder and service medical records prior to the examination, and noted that the veteran's left eye was documented as amblyopic prior to entering the military, and was later reported to have been "aggravated by old slight wound [sic]" when he was hit by a splinter from his rifle in March 1945. The examiner noted the veteran's condition had been stable since the onset of the disability, and that he was not receiving current treatment. The record showed that he had a minor surgical procedure in service to remove a steel foreign body from his left eye. He complained of intermittent burning and watering in his left eye. His corrected far vision in his left eye was 20/400, and his corrected near vision was light perception without projection. He could not detect hand motion or count fingers at any distance. Upon examination, the veteran had a mild cataract in his left eye, and a 1 square millimeter superior central corneal stromal scar, just off the visual axis. His fundoscopic examination was normal. The optic nerve was normal with no pallor. The blood vessels were normal, and there was mild mottling of the macula in both eyes. The fundus was normal. There was nuclear sclerosis of the left eye. There was decreased tear break up time in both eyes, worse in the left. No papillary defects were noted. When his left eye was dilated and his right eye completely occluded, the veteran stated that he could see the large "E" on the vision chart, which indicated that his corrected far vision was 20/400. The examiner diagnosed the veteran with amblyopia of the left eye and stated that the small off- axis corneal scar did not cause for vision loss. The examiner further stated that the scar is the only residual from the veteran's in-service trauma, and that it would not explain his reported light perception [only] vision. As instructed in the August 2007 remand, the examiner provided an assessment of the current severity of the veteran's left eye disability, over and above the level of impairment he had prior to entering service. The examiner stated the veteran's corrected far vision of 20/400 was the same as documented in June 1944, prior to his eye injury. The corneal scar that remained from the injury was small and off axis. The examiner stated that the scar "would not correlate with any decreased acuity and definitely not light perception acuity." Further, there was no afferent papillary defect and the optic nerve showed no pallor or any sign of traumatic optic neuropathy, and his macula in his left eye had a similar appearance to the macula in his right eye. There was a mild cataract in his left eye, which "could" have caused mildly decreased acuity, but it would not account for the light perception vision. The examiner concluded the veteran's measured vision of 20/400 was consistent with his acuity prior to the in-service injury, and that the acuity correlated with all objective findings, while the acuity of light perception did not correlate with objective findings. VA treatment records do not show any specific treatment for the veteran's left eye disability. In March 2006, he saw a VA ophthalmologist, who noted that the veteran had a corneal scar in his left eye, and that he had probably amblyopia and decreased vision prior to the trauma. He was also diagnosed with a cataract. A March 2005 VA treatment record also indicated he had amblyopia prior to the military trauma. In July 2005, the veteran also had a VA eye examination. But the Board remanded this case in August 2007 because that prior examination was deemed insufficient, as the examiner did not review the veteran's claims file and, instead, relied on his self-reported medical history. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1995); LeShore v. Brown, 8 Vet. App. 406 (1995); cf. Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (a medical opinion is "immaterial" where there is no indication that the physician reviewed relevant service medical records or any other relevant documents that would have enabled him to form an opinion ... on an independent basis); see also Owens v. Brown, 7 Vet. App. 429 (1995); Swann v. Brown, 5 Vet. App. 229, 233 (1993). See, too, 38 C.F.R. § 4.2 (2007) ("[i]f a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.") The veteran's self-reported history that his left eye vision was normal prior to his injury in service directly conflicts with his service medical records - including the report of his military entrance physical evaluation, which the examiner did not have the opportunity to review. Therefore, the examination report is not sufficient for rating purposes, as the examiner did not review relevant records. See, e.g., Kowalski v. Nicholson, 19 Vet. App. 171 (2005) and Coburn v. Nicholson, 19 Vet. App. 427 (2006) (indicating the Board may not disregard a medical opinion solely on the rationale that it was based on a history given by the veteran, but may discount the probative value of the opinion if, as here, the Board finds the veteran's statements that formed the basis of the opinion lacking credibility). Consequently, the Board finds the report of the more recent November 2007 VA examination far more probative, and it provides significant evidence against the veteran's claim. The examiner reviewed the veteran's claims file and service medical records and provided an opinion based on all relevant information of record. He concluded the veteran's injury in service, resulting in a corneal scar, did not aggravate his previously existing amblyopia of the left eye. And absent probative medical evidence to the contrary, the Board must find that the preponderance of the evidence is against his claim. That is to say, when subtracting out the extent of his disability prior to the injury in question during service, the veteran does not have the required visual impairment or field loss, pain, rest-requirements, or episodic incapacity, etc., to support assigning a compensable rating for his left eye disability under DC 6099-6009. For these reasons and bases, the preponderance of the evidence is against the veteran's claim - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Also, at no time since filing his current claim, or even within one year prior, has the veteran had more than noncompensable left eye disability. So the Board may not "stage" his rating under Hart. Finally, the Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the veteran is not adequately compensated by the regular rating schedule. According to 38 C.F.R. § 4.1, 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. VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for a compensable rating for the left eye disability is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs