Citation Nr: 0812061 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-09 058 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to a disability rating in excess of 30 percent for traumatic retinopathy of the left eye, status-post cataract extraction and intraocular lens implant. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty from June 1993 to January 1997, plus 5 months 4 days of prior active service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 decision of the RO that denied a disability rating in excess of 30 percent for service- connected traumatic retinopathy, status-post cataract extraction and intraocular lens implant. The veteran timely appealed. A March 2008 brief by the veteran's representative could be construed as an application to reopen a claim of service connection for bilateral hearing loss (last denied in an April 2004 rating action and not timely appealed). This matter is referred to the RO for appropriate action. FINDING OF FACT The veteran's traumatic retinopathy of the left eye, status- post cataract extraction and intraocular lens implant, has been manifested by blindness (only light perception in the left eye); the left eye has not been enucleated and he is not blind in the right eye. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for traumatic retinopathy of the left eye, status-post cataract extraction and intraocular lens implant, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.84a, Diagnostic Code 6070 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). Through April 2003 and April 2005 letters, the RO notified the veteran of elements of service connection, the evidence needed to establish each element, and evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claim. VA's letters notified the veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. The letters asked him if he had any additional evidence to submit, and thereby put him on notice to submit information or evidence in his possession. The veteran was not provided with notice of the type of evidence necessary to assign an effective date for an increased disability rating on appeal. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). The Board also acknowledges that the letters sent to the veteran have not met the requirements of VCAA notice regarding an increased rating claim. The letters are deficient as to both content and timing, and thus create a presumption of prejudice. In this case, the presumption has been overcome. The veteran was provided with correspondence regarding what was needed to support his claim in April 2005. Specifically, he was told to submit evidence of physical and clinical findings, results of laboratory tests, and individual statements from those with knowledge and/or personal observations who could describe the manner in which his disability had worsened. The July 2005 SSOC also listed each applicable diagnostic code and disability rating for impaired vision, which is based on objective testing and which the veteran reasonably could be expected to understand to support his claim. In correspondence (his substantive appeal) submitted in March 2005, the veteran described the effects that legal blindness in his left eye and impaired depth perception were having on his current employment as a drafter. The veteran previously reported that his employer provided him with a 30- inch screen monitor. The veteran has also been represented by a veterans' service organization throughout this appeal. Accordingly, any notice error is not prejudicial because the veteran has demonstrated actual knowledge of the information that is necessary to support the claim. Hence, the notice deficiencies do not affect the essential fairness of the adjudication. There is no indication that any additional action is needed to comply with the duty to assist the veteran. The RO has obtained copies of the veteran's service medical records and outpatient treatment records, and has arranged for the veteran to undergo VA examinations in connection with the claim on appeal, reports of which are of record. The veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2007). The veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. 4.1. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection has been established for traumatic retinopathy, status-post cataract extraction and intraocular lens implant. The RO assigned a 30 percent disability rating under 38 C.F.R. § 4.84a, Diagnostic Codes 6027-6077, pertaining to cataract. A hyphenated diagnostic code reflects a rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27). Pursuant to Diagnostic Code 6027, post-operative cataract is rated under the provisions of 38 C.F.R. § 4.84a, Diagnostic Codes 6067 to 6079, for impairment of central visual acuity. Visual acuity is rated based upon the best distant vision obtainable after correction by glasses, except in cases of keratoconus in which contact lenses are medically required. Also, if there exists a difference of more than 4 diopters of spherical correction between the two eyes, the best possible visual acuity of the poorer eye without glasses, or with a lens of not more than 4 diopters difference from that used with the better eye will be taken as the visual acuity of the poorer eye. 38 C.F.R. § 4.75. Combined ratings for disabilities of the same eye should not exceed the amount for total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. 38 C.F.R. § 4.80. Loss of use or blindness of one eye, having only light perception, exists when there is an inability to recognize test letters at 1 foot (.30 m.) and when further examination of the eyes reveals that perception of objects, hand movements or counting fingers cannot be accomplished at 3 feet (.91 m.); with lesser extents of visions, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet (.91 m.), being considered of negligible utility. 38 C.F.R. § 4.79. Blindness in one eye, having only light perception, will be 30 percent disabling if visual acuity in the other eye is 20/40 or better. Blindness in both eyes having only light perception warrants a 100 percent rating. 38 C.F.R. § 4.84a, Diagnostic Codes 6062 to 6070. Where a veteran has suffered blindness in one eye as a result of service-connected disability and blindness in the other eye as a result of nonservice-connected disability not the result of the veteran's willful misconduct, the applicable rate of compensation as if the combination of disabilities were service-connected will be assigned. 38 U.S.C.A. § 1160 (West 2002 & Supp. 2007). On VA examination in April 2003, the examiner noted that the veteran was legally blind in the left eye due to the traumatic retinopathy. His best corrected vision was 20/20 in the right eye. In November 2004, the veteran complained of a drastic decrease in his right eye vision during the prior six months. Later that same month, the veteran underwent surgery for extraction of cataracts on his right eye. During a VA examination in April 2005, the veteran complained of some blurred vision in his right eye for near and also at intermediate distance of approximately three feet. He reported that he had not yet received his final glasses prescription. Examination revealed the veteran's best corrected vision was 20/20 for the right eye, and without correction was 20/30. Near vision without correction was 20/400 and with correction was 20/25 for the right eye. Vision in the left eye was finger count a 1 foot; refraction did not improve. The examiner noted that the veteran's cataract surgery on both eyes was well-healed. The legal blindness of the left eye was permanent, and precluded significant diplopia. The veteran's depth perception was monocular, which was not as good as binoculars depth perception. The veteran clearly is not blind in the nonservice-connected eye. Though he has only light perception in his service- connected left eye, it has not been enucleated. The Board finds that a disability rating in excess of 30 percent for traumatic retinopathy, status-post cataract extraction and intraocular lens implant, is not warranted. See Table V, 38 C.F.R. § 4.84a. Although special monthly compensation has been awarded for blindness of one eye, having only light perception, there is no showing that the veteran's service-connected traumatic retinopathy, status-post cataract extraction and intraocular lens implant, has resulted in so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the veteran's disability has not been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The veteran has reported additional time lost from work and special accommodation by his employer, but the exhibited industrial impairment is contemplated by the relatively high schedular rating. There is no evidence of recent hospitalizations. In the absence of evidence of any of the factors outlined above, the criteria for referral for consideration of an extraschedular rating have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Thus, the weight of the evidence is against the grant of a disability rating in excess of 30 percent for service- connected traumatic retinopathy, status-post cataract extraction and intraocular lens implant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2007). ORDER An increased rating for traumatic retinopathy of the left eye, status-post cataract extraction and intraocular lens implant, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs