Citation Nr: 1127315 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 03-24 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for impaired vision in the right eye (right eye disability). 2. Entitlement to an extraschedular rating for right eye disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and an observer ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran had active service from August 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's claim was previously remanded in April 2007, September 2008, July 2009, and January 2011. The Board finds that has been substantial compliance with the Board's January 2011 remand, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran participated in a videoconference hearing with the undersigned Veterans Law Judge in February 2007. A transcript is of record. The issue of entitlement to an extraschedular rating for right eye disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's corrected vision acuity, both near and distance, is 20/40 in the right eye, and 20/20 in the left eye. 2. An exceptional or unusual disability picture such as to render impractical the application of the regular schedular standards concerning the Veteran's symptoms related to his right eye disability has been shown. The schedular criteria are inadequate. CONCLUSIONS OF LAW 1. Criteria for an initial rating in excess of 10 percent for a right eye disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.75, 4.84a, Diagnostic Codes 6027, 6079 (version effective prior to December 10, 2008). 2. The criteria for referral to the Director of Compensation and Pension for consideration of an extraschedular rating for a right eye disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a Veteran of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a Veteran in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters dated in February 2002, March 2006, and May 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete his underlying claim of entitlement to service connection and subsequent request for an increased rating, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also generally advised the Veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), was provided in the March 2006 notice. The Board notes that the Veteran was not provided pre-decisional notice with respect to his increased rating request for the right eye disability. The United States Court of Appeals for Veterans Claims (Court) has indicated that in a claim for a higher initial evaluation after the claim for service connection has been substantiated and allowed, as is the situation in this case, that further notice is not required. See Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran's underlying claim of service connection for a right eye disability was granted and this is an appeal of an initial rating. As such, the Board finds that VA met its duty to notify the Veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the United States Court of Appeals for Veterans Claims (Court) held in Pelegrini that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial February 2002 VCAA notice was given prior to the appealed AOJ decision, dated in June 2002. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence, affording him physical examinations, obtaining medical opinions as to the severity of his disability, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board. As noted above, the Veteran appeared and testified at a videoconference hearing at the Chicago RO. Again, the Veteran has been afforded VA medical examinations in connection with his claim. 38 C.F.R. § 3.159(c) (4) (2010). The Board finds that the examinations are adequate. The opinions were provided by qualified medical professionals and were predicated on an examination of the Veteran and a review of the claims folder. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2010). Neither the Veteran nor his representative has argued otherwise. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the Veteran's claims file. Thus, the Board finds that VA has done everything reasonably possible to notify and assist the Veteran and that no further action is necessary to meet the requirements of the VCAA. Increased rating The Veteran seeks an initial rating in excess of 10 percent for his right eye disability. He essentially contends that the loss of vision in his right eye impacts his ability to work. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. See Fenderson v. West, 12 Vet. App. 119 (1999). In Hart v. Mansfield, 21 Vet.App. 505 (2007), however, the Court held that "staged" ratings are appropriate for an increased rating claim in such a case, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Under the Rating Schedule, the Veteran's right eye disability is rated based upon impairment of visual acuity. Visual acuity is rated based upon the best distant vision obtainable after correction by glasses. 38 C.F.R. § 4.75. In December 2008, the eye regulations changed. 73 Fed. Reg. 66543 (Nov. 10, 2008). The new regulations, however, only apply to applications for benefits received by VA on or after December 10, 2008. Id. As the Veteran's claim was received in December 2001, only the old regulations apply. The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under § 4.84a, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. Diagnostic Codes 6061 to 6079. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/50 and vision in the other eye is correctable to 20/40; (2) when vision in both eyes is correctable to 20/50; (3) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079. A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/50; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6077, 6078. A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when there is blindness in one eye, having only light perception and vision in the other eye is correctable to 20/40; (2) vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; (3) vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (3) vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; or both eyes are correctable to 20/70. 38 C.F.R. § 4.84a, Diagnostic Codes 6070, 6074, 6076, 6077, 6078. In this case, the Veteran's eye condition has been identified as "loss of sight in right eye secondary to diabetes mellitus" and rated under diagnostic code 6079, which pertains to a specific level of visual impairment. The actual medical condition underlying the visual impairment is fungal keratitis, status post penetrating keratoplasty of the right eye, which was found secondary to service-connected diabetes mellitus. The VA examination in February 2008 included findings of decreased depth perception (stereopsis), abnormal tracking, and glare, which, according to the examination, have an adverse impact on the Veteran's ability to work at his job as a farmer. Visual acuity testing revealed corrected distance vision of 20/30- in the right eye (slow from 20/50), and 20/20 vision in the left eye. The examiner concluded, in essence, that although the Veteran was able to compensate, he was slowed down as a result of his symptoms, and was at an increased risk of accident, due to the lack of stereopsis. During the Veteran's February 2007 hearing, he testified to significant vision problems that impacted his employment as a farmer. He testified to having halos, starbursts, blurred vision, and difficulty with depth perception. He stated that he is unable to plant seeds/plants in a straight row, and this yields less crops. He advised that his vision impairment is most apparent when he is moving, and has difficulty with driving. In September 2010, the Veteran underwent another VA examination of the eyes. He advised that his right eye vision blurred since a corneal infection and transplant-even with glasses. The Veteran uses daily drops in the right eye to prevent transplant rejection. He reported glare problems and ghost-like images. He described his symptoms as like looking though a glass of water. The Veteran endorsed more difficulty seeing in dim light or nighttime, such as in his barn or basement. He related difficulty following moving objects as they blur when they move across his line of sight from the right to the left. The examiner noted that the Veteran is able to work in his farming profession, but has to be careful and work more slowly. The Veteran denied accidents due to his vision, but reported difficulty reading small print, impacted depth perception/judging distances, difficulty centering objects such as planting a row of seeds and checking the wall and fence, and difficulty with night vision. Physical examination revealed full confrontation fields in both eyes, and essentially full Goldmann ocular testing. His right pupil was slightly larger in his right eye (3 mm) versus his left eye (2mm). Extraocular muscle testing revealed full movement without palsy, restriction, pain, or diplopia. There was no nystagmus, but there was orthophoria at distance vision and slight exophoria at near vision. In terms of stereopsis, there was 400 seconds of arc. Visual acuity testing revealed corrected distance acuity of 20/40 in the right eye, and 20/20 in the left eye. Corrected near acuity was 20/40 in the right eye, and 20/20 in the left eye. Slit lamp testing was normal, but noted were small areas of haze at old suture sites, small subepithelial scar nasally, and a vertical fold in the right eye. Left eye revealed mild inferior superficial punctuate keratitis and mild arcus senilis. There were mild nuclear sclerotic cataracts in both eyes. The examiner ultimately diagnosed penetrating keratoplasty of the right eye with corneal transplant in 1996, and current, persistent visual problems in the right eye. These problems include mildly decreased best corrected vision in the right eye, likely due to residual or irregular astigmatism since the corneal transplant. He was also noted to have decreased stereopsis (depth perception at near) that was most likely due to the difference in corrected visual acuity between the two eyes, and glare, ghosting of images, and blurred vision while tracking an object. He also has mild nuclear sclerotic cataracts of equal degree in both eyes, causing difficulty tolerating glare. The examiner noted that it is difficult to determine the impairment on the Veteran's ability to function as a farmer due to his right eye disability. The examiner noted that environmental factors such as working conditions, lighting levels, temperature, and humidity could all impact his visual functioning, but there are very few tasks that would be impossible for the Veteran to perform due to his ocular condition. Also, the examiner noted the Veteran had no legal restrictions in operating a motor vehicle due to the vision impairment in his right eye. The examiner opined that due to the Veteran's reduced depth perception, he would be required to take extra time, care, and concentration when working with equipment, including power tools, to ensure safety and accuracy. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his right eye disability on a schedular basis. Simply put, the Veteran's corrected vision does not reach a level to warrant the higher, 20 percent rating pursuant to Diagnostic Codes 6077. Namely, there is no evidence that correctable vision in one eye 20/70 and vision in the other eye is correctable to 20/50 or worse. As noted above, corrected vision, both near and in distance, is 20/40 in the right eye, and 20/20 in the left eye. Thus, the Veteran does not meet the rating criteria pursuant to Diagnostic Codes 6061 to 6079 for a 20 percent rating for his right eye disability. As such, a rating in excess of 10 percent for right eye disability is denied on a schedular basis. As for loss of field of vision, there is no evidence of a compensable rating for loss of field of vision inasmuch as the testing for the field of vision has been interpreted as normal. See Diagnostic Code 6080. Also, there is no evidence of active pathology with incapacitating episodes, pain, or rest requirements. The Board has considered whether to apply staged ratings pursuant to Hart, but under the circumstances finds it inappropriate. Extraschedular considerations Above, the Board denied a rating in excess of 10 percent for the Veteran's right eye disability on a schedular basis. The Board incorporates the facts as noted in the increased rating section above to this extraschedular analysis. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. Referral to the Director of the Compensation and Pension Service for a potential extraschedular rating may be made in exceptional cases where a case presents "such an exceptional or unusual disability picture with such related factors as marked interference with employability or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321. In Thun v. Peake, 22 Vet. App. 111 (2008), the United States Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. These three steps are as follows: Step 1- The Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then the Board must address step two. Step 2- If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those identified by the regulation as "governing norms," including "marked interference with employment" or and "frequent periods of hospitalization." (The Court, in Thun, noted that extraschedular consideration may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the veteran is totally unemployable). Step 3- If the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the Veteran's disability picture warrants the assignment of an extraschedular rating. Unlike the criteria for rating many other conditions, the rating criteria pertaining to most eye conditions, including keratitis, which is the underlying disease in this case, are specific, and do not include language conducive to evaluating a symptom on the basis that it is comparable to another symptom, nor does the schedule provide for symptoms such as lack of depth perception or tracking or glare problems. See 38 C.F.R. § 4.84a. As such, the Board finds that symptoms related to the Veteran's right eye disability are not adequately addressed by the schedular rating criteria that focus on diminished visual acuity. Upon review of the second step pursuant to Thun, the Board finds that it is at least plausible that the Veteran's right eye disability causes marked interference with employment. Indeed, the Veteran does not have a history of frequent periods of hospitalizations related to his right eye disability, nor has he so contended. But, he has testified to the daily impact and interference his right eye disability has on his employment. As noted above, the Veteran is a farmer by trade, and his impaired depth perception has caused him to have difficulty planting seeds in rows, and this results in a lower yield and lost crops. He is certainly competent and credible to so report, and this reflects the findings in Thun that extraschedular consideration may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the veteran is totally unemployable. Additionally, the VA examination report detailed above noted that the Veteran is at increased chance of work-related accidents due to his eye disability. Noted was his use of machinery and farm equipment, as well as difficulty with blurred vision and glare intolerance in places such as his barn and basement. The examiners indicated that the Veteran's right eye symptoms cause his work to be performed more slowly and carefully than before, and make him prone to accidents. The Board finds upon review of the evidence as outlined above, that the second step in the Thun-analysis has been met inasmuch as the evidence of record reflects that it is plausible that the Veteran's right eye disability causes marked interference with his employment, and causes a loss in earning capacity. As such, the Board finds that the symptoms of the Veteran's right eye disability are not contemplated by the rating criteria and it causes marked interference with his employment as a farmer. Thus, the Veteran's claim must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the Veteran's disability picture warrants the assignment of an extraschedular rating. As noted above, the Board does not have the authority to assign an extraschedular disability rating in the first instance. Floyd v. Brown, 9 Vet. App 88 (1996). In the REMAND portion of this decision, the Board will direct the RO to refer the matter to the Director of Compensation and Pension to determine whether an extraschedular rating should be assigned. ORDER A schedular rating in excess of 10 percent for a right eye disability is denied. The Board having identified plausible evidence in the record that the symptoms of the Veteran's right eye disability are unusual and exceptional in nature, referral of the claim to the Director of Compensation and Pension for consideration of an extraschedular rating is granted. REMAND In light of the VCAA, and the findings above, the Veteran's claim is remanded for referral to the Director of Compensation and Pension service to determine whether assignment of an extraschedular rating is warranted for his service-connected right eye disability. Again, the Board cannot assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Accordingly, the case is REMANDED for the following action: 1. The RO should refer the case to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to assignment of an extraschedular rating for a right eye disability in accordance with the provisions of 38 C.F.R. § 3.321(b). Upon referral, it should be noted that the Veteran has been awarded a 10 percent rating for his right eye disability. The rating board should include a full statement of all factors having a bearing on the issue. 2. When the development requested has been completed, the case should be reviewed on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ MICHELLE L. KANE Chief Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs