Citation Nr: 1127299	
Decision Date: 07/21/11    Archive Date: 07/29/11

DOCKET NO.  06-17 450	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for pseudotumor cerebri with residual loss of visual field prior to March 18, 2005.

2.  Entitlement to a rating in excess of 30 percent for pseudotumor cerebri with residual loss of visual field since March 18, 2005.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. Ogilvie, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1986 to May 1987.

This appeal to the Board of Veterans' Appeals (Board) arises from an April 2005 rating decision in which the RO granted service connection and assigned an initial 50 percent rating for pseudotumor cerebri with residual loss of visual field, effective March 22, 2004.  The RO assigned a 30 percent rating effective March 18, 2005.

In December 2006, a Deputy Vice-Chairman of the Board denied the appellant's motion to advance this appeal on the Board's docket, pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2010).

As the appeal involves requests for higher initial ratings following the grant of service connection, the Board has characterized the issue on appeal in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities).

In October 2009, the Board remanded the claims on appeal for additional development.  The claims are again before the Board for appellate review.

As a final preliminary matter, in the prior remand, the Board referred inferred claims for a rating in excess of 40 percent for chronic posttraumatic lumbosacral strain with degenerative changes and for a total rating for compensation purposes based on individual unemployability (TDIU).  These inferred claims are, again, referred to the RO for appropriate action. 


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished.

2.  From the March 22, 2004 effective date of the grant of service connection to March 17, 2005, the Veteran's pseudotumor cerebri with residual loss of visual field was manifested by at least 30 degrees of concentric contraction of the visual field in each eye, but with visual field concentric contraction greater than 15 degrees in each eye.  

3.  Since March 18, 2005, the Veteran's pseudotumor cerebri with residual loss of visual field has been manifested by some loss in the visual field, but with visual field concentric contraction greater than 30 degrees in each eye.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 50 percent for pseudotumor cerebri with residual loss of visual field, prior to March 18, 2005, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7 (2010), 4.84a Diagnostic Code 6080 (2008).  

2.  The criteria for a rating in excess of 30 percent for pseudotumor cerebri with residual loss of visual field, since March 18, 2005, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7 (2010), 4.84a Diagnostic Code 6080 (2008).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VCAA-compliant notice must 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.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

As service connection, an initial rating, and an effective date have been assigned, the Board finds that the notice requirements of 38 U.S.C.A. § 5103(a), have been met.  Hartman v. Nicholson, 483 F. 3d 1311 (Fed Cir. 2007).

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal.  Pertinent medical evidence associated with the claims file consists of service, Social Security, VA, and private treatment records, and VA examination reports.

The Board also finds that no additional RO action to further develop the record is warranted as to the matters on appeal.  In summary, the duties imposed by the VCAA have been considered and satisfied.  Through notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with these claims.

Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings 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.  

The Board recognizes that the criteria for rating disabilities of the eye have recently changed.  To whatever extent the changes could be relevant in this case, the Board notes that the changes are only applicable to claims filed on or after the effective date of the regulation change, December 10, 2008.  See 73 Fed. Reg. 66,543-66,554 (November 10, 2008).  As the present claims were filed before that date, the changes are not applicable.  

The Veteran's eye disability has been evaluated under 38 C.F.R. § 4.84a, Diagnostic Code 6080, which contemplates ratings for impairment of field vision.  38 C.F.R. § 4.76 provides that measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated.  38 C.F.R. § 4.76a explains how ratings are assigned based on impairment of field vision, as follows.

The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians.  The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III.  The degrees lost are then added together to determine the total degrees lost.  This is subtracted from 500.  The difference represents the total remaining degrees of visual field.  The difference divided by 8 represents the average contraction for rating purposes.  38 C.F.R. § 4.76a.

According to Table III in 38 C.F.R. § 4.76a, the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55.  The total visual field is 500 degrees.

Diagnostic Code 6080 provides that bilateral concentric contraction of the visual field to 60 degrees but not to 45 degrees warrants a 20 percent rating or is rated as equivalent to visual acuity of 20/50.  Bilateral concentric contraction to 45 degrees but not to 30 degrees warrants a 30 percent rating or is rated as equivalent to visual acuity of 20/70.  Bilateral concentric contraction to 30 degrees but not to 15 degrees warrants a 50 percent rating, or is rated as equivalent to visual acuity of 20/100.  Bilateral concentric contraction to 15 degrees but not to 5 degrees warrants a 70 percent rating, or is rated as equivalent to visual acuity of 20/200.  Bilateral concentric contraction to 5 degrees warrants a 100 percent rating, or is rated as equivalent to visual acuity of 5/200.  Bilateral loss of the nasal half of the visual field warrants a 20 percent rating, or is rated as equivalent to visual acuity of 20/50, while bilateral loss of the temporal half of the visual field is evaluated as 30 percent disabling or as equivalent to visual acuity of 20/70.  38 C.F.R. § 4.84a, Diagnostic Code 6080.

The Board notes that the visual field testing results of record are displayed in graphical format and have all been interpreted by the examiner.

Prior to March 18, 2005

Relevant medical evidence of record reflects that the Veteran underwent a VA examination in September 2004.  The Veteran had no current eye signs or symptoms.  Right eye, near, uncorrected read J1.  Right eye, near, corrected read J1.  Right eye, uncorrected, distance was 20/400-.  Right eye, corrected, distance was 20/20.  Left eye uncorrected, read near J1.  Left eye, corrected, read near J1.  Left eye, uncorrected, distance was 20/400-.  Left eye corrected, distance was 20/20.  There was no diplopia.  Slit lamp examination was essentially unremarkable.  Pupils were equal and round and react to light in both eyes.  There were no signs of Marcus-Gunn pupil.  Fundus exam showed tortuosity of the vessels of the optic nerve.  There was good optic nerve color, and over the last year, especially in the right eye, there had been a marked improvement in optic nerve color.  There were no hemorrhages seen in the retina in either eye.  There was some optic nerve marginal haziness in the right eye as before, and this was significant less than a year ago.  Tensions by applanation were 17 in each eye.



In October 2004, visual field testing, degrees at each meridian were as follows:

Meridians

Temporally
(85)
Down
Temporally
(85)
Down
(65)
Down
Nasally
(50)
Nasally
(60)
Up nasally
(55)
Up
(45)
Up
Temporally
(55)
Right
29
22
15
19
28
20
29
20
Left
43
25
21
22
30
25
22
23

The results for the right eye show visual field concentric contraction of 23 degrees (182 divided by 8).  The results for the left eye show visual field concentric contraction of 27 degrees (211 divided by 8).

Visual field testing prior to March 18, 2005 did not show visual filed concentric contraction of 15 degrees or less.  As such, a rating in excess of 50 percent is not warranted during that period.  See 38 C.F.R. § 4.84a, Diagnostic Code 6080.  

Since March 18, 2005

The Veteran underwent VA examination in March 2005.  The Veteran complained of difficulty in reading for periods of time, with a differing quality of vision between the eyes.  The examiner commented that visual field testing conducted on March 18, 2005 revealed improved visual fields in both eyes, with some nondescript superior encroachment in the left eye. Physical examination revealed no double vision. The diagnosis was pseudotumor cerebri with optic nerve changes and visual changes. The examiner noted that the Veteran was able to see 20/20 in each eye, and read J1 in each eye.  Visual field testing, degrees at each meridian were as follows:

Meridians

Temporally
(85)
Down
Temporally
(85)
Down
(65)
Down
Nasally
(50)
Nasally
(60)
Up nasally
(55)
Up
(45)
Up
Temporally
(55)
Right
55
40
32
28
28
32
25
32
Left
55
55
41
38
35
28
32
48

The results for the right eye show visual field concentric contraction of 34 degrees (272 divided by 8).  The results for the left eye show visual field concentric contraction of 42 degrees (332 divided by 8).

The Veteran underwent another VA examination in December 2009.  The Veteran complained of light sensitivity in each eye and visual field deficit problems in the right eye.  The Veteran's right eye, uncorrected, was distance 20/400-.  Right eye, distance, corrected, was 20/30-2.  Right eye, near, uncorrected read J7 and near, corrected read J6.  The left eye, uncorrected, was distance 20/400 and corrected was 20/20-2.  The left eye, uncorrected and corrected, each read near J1.  There was no double vision.  External examination was essentially unremarkable.  Pupils were equal, round, and react to light.  There was no Marcus-Gunn pupil.  Slit-lamp examination was essentially unremarkable.  Tensions by applanation were 16 in each eye.  Fundus examination showed a C/D ration of 0.1OU.  In the right eye, there was reasonable optic nerve color.  The margins were not crisp but were identifiable.  There were no disc hemorrhages or posterior pole hemorrhages in the right eye.  In the left eye, there were crisp margins.  There was some tortuosity of vessels, which was old.  The posterior pole was essentially unremarkable.  Visual field testing, degrees at each meridian were as follows:

Meridians

Temporally
(85)
Down
Temporally
(85)
Down
(65)
Down
Nasally
(50)
Nasally
(60)
Up nasally
(55)
Up
(45)
Up
Temporally
(55)
Right
18
19
29
15
15
22
22
20
Left
72
62
59
50
35
42
35
49

The results for the right eye show visual field concentric contraction of 20 degrees (160 divided by 8).  The results for the left eye show visual field concentric contraction of 50.5 degrees (404 divided by 8).

Visual field testing in March 2005 showed visual filed concentric contraction greater than 30 degrees in each eye.  Visual testing in December 2009, however, revealed visual filed concentric contraction of 20 degrees in the right eye and of 50.5 degrees in the left eye.  When rated unilaterally, a finding of 20 degrees in the right eye would warrant a 10 percent rating, and a finding of 50.5 in the left eye would warrant a 10 percent rating.  Combined, this would only amount to a 20 percent rating.  As such, a rating in excess of 30 percent is not warranted during that period.  See 38 C.F.R. § 4.84a, Diagnostic Code 6080.  

Both Periods

The Board recognizes that Diagnostic Code 6080 provides alternate central visual acuity scores that can be used for rating field vision impairment as central visual acuity impairment.  When applying the corresponding central visual acuity scores to 38 C.F.R. § 4.84a, Table V, no higher ratings are warranted, including for the findings in the December 2009 VA examination.  

For all the foregoing reasons, the Board finds that there is no basis for further staged rating of the Veteran's bilateral visual field defect, and that the claims for ratings in excess of 50 and 30 percent must be denied.  In reaching these conclusions, 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 v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

The above determinations are based upon consideration of applicable provisions of VA's rating schedule.  The Board also finds that there is no showing that, at any point, the Veteran's service-connected bilateral visual field defect has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b).  

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116.

In this regard, the Board notes that nothing raised by the record indicates that the level of severity and symptomatology of the Veteran's service-connected pseudotumor cerebri with visual field deficit is not adequately contemplated by the rating schedule.  Id.  In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) have not been met.  See Thun, 22 Vet. App. at 115.  The Board again notes that a claim for entitlement to a TDIU has been referred to the RO for development.


ORDER

Entitlement to an initial rating in excess of 50 percent for pseudotumor cerebri with residual loss of visual field prior to March 18, 2005 is denied.

Entitlement to a rating in excess of 30 percent for pseudotumor cerebri with residual loss of visual field since March 18, 2005 is denied.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs