Citation Nr: 1005271 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 05-00 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a separate compensable rating for diabetic retinopathy and hyperopia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1970. This matter is on appeal from the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in December 2008. A transcript of the hearing is of record. This case had also originally included a claim for service connection for peripheral neuropathy of both lowewr extremities. The Board had awarded service connectionfor these disabilities in its February 2009 decision. The RO then issued a rating action in November 2009 that assigned a 10 percent disability evaluation to each lower extremity. Therefore, this issue is no longer before the Board. This case was remanded by the Board in February 2009 for further development and is now ready for disposition. FINDING OF FACT During the entire period on appeal, objective findings have not shown corrected visual acuity to 20/40, or worse, in both eyes. CONCLUSION OF LAW The criteria for a separate, compensable disability rating for diabetic retinopathy and hyperopia have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.76, 4.76a, 4.79, 4.119, Diagnostic Codes (DCs) 6006, 7913 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection for his type 2 diabetes mellitus with diabetic retinopathy and hyperopia. 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. As to VA's duty to assist, the RO associated the Veteran's private and VA treatment records, and he was afforded a VA examination in March 2009. The Board finds that no additional assistance is required to fulfill VA's duty to assist. 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). II. Disability Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2009). The 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 (West 2002); 38 C.F.R. § 4.1 (2009). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2009); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2009). "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). The present appeal involves the initial disability rating assigned for the Veteran's service-connected type 2 diabetes mellitus and whether a separate, compensable, disability rating is warranted for diabetic retinopathy of the eyes. Accordingly, the entire body of evidence is for equal consideration. Consistent with the facts found, the ratings may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e) (2009), which generally requires notice and a delay in implementation of a proposed rating reduction. Fenderson, 12 Vet. App. at 126. Service connection is in effect for type 2 diabetes mellitus is rated under Diagnostic Code 7913. Diagnostic Code 7913 further instructs to "evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913." 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2009). Diabetic retinopathy, also known as diabetic retinitis, is rated from 10 to 100 percent for impairment of visual acuity or field loss, pain, rest requirements, or episodic incapacity, combining an additional rating during periods of active pathology. 38 C.F.R. § 4.79, DC 6006 (2009). Visual acuity rating is based on the best distance vision obtainable with best correction by glasses except in cases involving keratocomus or where the spherical correction between the two eyes varies by more than four diopters. 38 C.F.R. § 4.75, 4.79, Table Veteran (2009). Neither exception is evident in this case. Ratings for contraction of visual field in each eye are determined by computing an average concentric contraction using test results from a Goldman perimeter chart. 38 C.F.R. § 4.76, 4.76a, 4.79, DC 6080 (2009). Maculopathy is any pathological condition of the macula retinae. Dorland's Illustrated Medical Dictionary, 978 (28th Ed. 1994). A private medical record dated in October 2002 is the first indication that the Veteran complained of visual pathology associated with his diabetes. The diagnosis was hyperopia. No visual acuity results were recorded. In July and November 2003, VA outpatient treatment records indicated "no blurred vision or double vision, irritated eyes, or eye pain. No light flashes or halos around lights." In April 2004, a VA eye consult was conducted. The Veteran reported decreased vision, fluctuation of vision at distance and near for several years, burning and scabby deposits with mucous discharge in medial canthus, and that his eyelids felt sticky occasionally. On VA eye examination his vision was correctable to "20/40 - 2" and "20/20 - 1" in the right eye and "20/20 - 2" in the left eye. The assessment was a "history of diabetes mellitus for two years without retinopathy, both eyes." A May 2005 VA diabetic eye care examination again revealed that the Veteran's vision was correctable to 20/20 in both eyes. This examination also indicates "no diabetic retinopathy both eyes." A VA outpatient eye treatment record dated in July 2005 reveals that a diabetic eye examination was conducted with the results being "normal." His vision was correctable to 20/25 in the right eye and 20/40 in the left eye. An October 2006 VA outpatient eye treatment record indicated a normal retinal diabetic eye exam and the examiner stated "on eye exam the patient has no Diabetic Retinopathy." His vision was correctable to 20/30 for both eyes. Similarly, a December 2007 VA outpatient eye treatment record included an assessment of "diabetes mellitus without diabetic retinopathy both eyes." At that time, the Veteran's vision was correctable to "20/20 - 2" in both eyes. In March 2009, a VA eye examination of the Veteran was conducted. As an initial matter, the Board finds that the evaluation is adequate for rating purposes. Specifically, the examiner obtained a history from the Veteran and conducted a thorough examination. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant facts. Therefore, the Board can proceed to adjudicate the claims on appeal. The March 2009 examination revealed that the Veteran's distance vision was correctable to 20/20 in both eyes. His visual fields were noted to be without defect. The diagnosis was diabetes mellitus without diabetic retinopathy both eyes. Additionally, the examiner diagnosed hyperopia in both eyes that corrects to 20/20 and is a developmental condition unrelated to diabetes mellitus. Further, the examiner diagnosed cataracts in both eyes noting that the cataracts were not visually significant at this time. The examiner opined that he could not determine whether the cataracts were caused by diabetes mellitus because "cataract is a natural aging process of the lens that can progress at an increased rate with various system disorders including diabetes mellitus. . . ." The preponderance of the evidence is against the assignment of a separate compensable disability rating for the Veteran's diabetic retinopathy and hyperopia. The evidence shows that he has a history diabetic retinopathy without any impairment to visual function. The medical evidence reveals that his vision is correctable to normal with glasses and that he does not have any deficit in the visual field. Accordingly he does not show that his visual symptoms warrant the assignment of a separate, compensable, disability rating. The Board has also considered the Veteran's statements and sworn testimony. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, diabetic retinopathy and hyperopia are not the types of disorders that a lay person can provide competent evidence on the degree of severity. The Board acknowledges his belief that his symptoms are of such severity as to warrant a separate, compensable rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disability. In sum, after a careful review of the evidence of records, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2009), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." Id. Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, while the Veteran reported at his hearing and in his November 2004 Appeal Form 9 that he was unable to work, his physicians have not ordered him to be on bedrest or otherwise indicated that he was unable to work. Notably, the Veteran's claim for individual unemployability was denied in April 2005 because he was not found to be unemployable due to service-connected disabilities. Further, at his hearing before the Board, he claimed that he was unemployable because he needed to get up and move around constantly. He did not claim that his diabetic retinopathy caused him to be unemployable. Moreover, the rating criteria reasonably describe his disability levels and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. ORDER A separate, compensable, disability rating for diabetic retinopathy and hyperopia is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs