Citation Nr: 0814693 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-11 908A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased disability rating for residuals of left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from September 1942 to January 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). The RO continued the 10 percent evaluation for left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia. In August 2006, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The veteran's case has been advanced on the docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT Left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia is not manifested by visual acuity of, at worst, 20/100. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.84a, Diagnostic Code 6079 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice should be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a claim for increase, section 5103(a) requires that the Secretary (1) 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; (2) 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; (3) notify the claimant 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; and (4) 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 v. Peake, 22 Vet. App. 37 (2008). In this case, the veteran was not sent a notification letter prior to initial consideration of the claim for increase. The veteran received subsequent notice from the May 2003 rating decision on appeal and an August 2006 letter. In the May 2003 rating decision, the RO explained that evaluations for impairment of central visual acuity is based upon objective testing and that higher evaluations are assigned for more severe levels of impairment. It further noted that the veteran's disability was not specifically listed in the rating schedule and that it was rated by analogy to a disability that was closely related. In the August 2006 letter, VA informed the veteran he could submit evidence showing that his service-connected disability had increased in severity. He was told that such evidence may be from a doctor, but could also be from individuals who are able to describe from their knowledge and personal observations in what manner the veteran's disability had become worse. VA noted that the veteran could submit a statement describing his symptoms, their frequency and severity, and another additional disablement caused by his disability. The veteran was also told that service-connected disabilities were evaluated from 0 percent to 100 percent based upon several factors, which criteria are published in Part 4 of Chapter 38 of the Code of Federal Regulations. Here, the only error that appears to have occurred is in the timing of the letter, as it was not sent until years after the veteran filed his claim for increase. Regardless, the Board finds that the veteran has not been prejudiced by such. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, as stated in the May 2003 rating decision, impairments involving visual acuity are rated based upon objective testing. Second, after the more detailed notice was sent to the veteran in August 2006, the veteran sent in a response, stating that he had no additional evidence to submit. Finally, the RO readjudicated the claim in October 2007. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. Id. VA obtained VA clinical records dated from 2003 to 2007. VA provided examinations in connection with the claim for increase. The veteran's most recent VA examination occurred in April 2007. In October 2007, he submitted a statement arguing that his eyes had not been examined at the April 2007 examination and felt he was given an inadequate examination. Of record is the April 2007 VA examination, which shows that the examiner reported the veteran's visual acuity and other clinical findings associated with the veteran's eyes. Therefore, it is not shown that the eye examination was in some way incorrectly conducted, and the Board finds that additional development by way of another examination would be unnecessary. The veteran was given an opportunity to provide testimony at the May 2006 hearing before the undersigned. The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating The veteran alleges that the service-connected residuals of left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia warrants a compensable evaluation, as he feels that lymphoma is active. Service connection for residuals of left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia was granted and assigned a noncompensable evaluation, effective January 7, 1946. He was awarded a 10 percent evaluation as of February 29, 1996, and remains at this evaluation. The veteran contends he warrants a higher evaluation. At the May 2006 hearing before the undersigned, the veteran testified that he felt he warranted a higher evaluation because he could not see well out of his left eye, which he stated he felt was getting worse. He described his eyesight as "almost gone" out of that eye. The veteran testified he could read out of that eye, but he would have to bring the reading material very close to his eye. He stated he had to have his eye glasses updated recently. The veteran described getting a headache if he wore his glasses for too long. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through 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 (1991). The service-connected residuals of left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia are evaluated under Diagnostic Code 6079. The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a (2007). 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 (2007). 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 (2007). Because only one eye is service connected, the service- connected eye is evaluated with the assumption that the non- service-connected eye has 20/40 visual acuity. In order to obtain a 20 percent evaluation, the service-connected eye would need to have a visual acuity of 20/200 or worse. See 38 C.F.R. § 4.84a, Diagnostic Code 6077. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the service-connected residuals of left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia warrants a higher evaluation. As stated above, in order for a 20 percent evaluation to be warranted, the veteran's visual acuity in the left eye would need to be 20/200, which has not been shown in all the eye examinations during the appeal period. For example, in June 2004, his visual acuity in the left eye was 20/100, corrected. In December 2005, it was 20/80, corrected, in December 2004, it was 20/70, corrected, and in December 2006, it was 20/70, corrected. Finally, in April 2007, it was 20/60-2, corrected. These visual acuities are better than what is needed for the 20 percent evaluation. See 38 C.F.R. § 4.84a, Diagnostic Code 6077. Thus, a higher evaluation is not warranted. The veteran is competent to report his symptoms; however, to the extent that he has asserted that the service-connected disability warrants a higher evaluation, the medical findings do not support his assertions. The preponderance of the evidence is against a finding that the service-connected disability warrants an evaluation in excess of 10 percent for the reasons stated above. The benefit-of-the-doubt rule is not for application in this case. See Gilbert, 1 Vet. App. at 55. The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). The overall disability picture with respect to the service-connected left eye does not show any significant impairment beyond that contemplated in the 10 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating for left eye injury with decreased vision due to staphyloma, stromal scar, and amblyopia is denied. ________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs