Citation Nr: 1127589 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 07-39 781 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 30 percent for the residuals of a right eye injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach INTRODUCTION The Veteran served on active duty from January 1952 to April 1955. His awards and decorations included the Combat Infantryman Badge. This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the RO. In June 2011, during the course of the appeal, the Veteran had a video conference with the undersigned. A transcript of that hearing has been included in the claims folder. A review of the evidence discloses that the Veteran's service-connected right eye disability is currently rated as defective visual acuity. However, a review of the evidence reveals that such disability is the result of an injury sustained in a motor vehicle accident in service. Therefore, to better comport with the history of the Veteran's right eye disability and current evidence of record, the Board will rate that disability as the residuals of a right eye injury. Such residuals include defective visual acuity. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's right eye injury has healed without active pathology. 2. The Veteran's corrected visual acuity for distance is no worse than 20/400 in his service-connected right eye and 20/30 in his nonservice-connected left eye. 3. The Veteran has general constriction of his right visual field. 4. The service-connected residuals of the Veteran's right eye injury consists primarily of complaints of pain without evidence of rest requirements or episodic incapacity. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for the residuals of a right eye injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.84a, Diagnostic Code 6009 (2006) (codified as revised at 38 C.F.R. § 4.79, Diagnostic Code 6009 (2010)). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue entitlement to an increased rating for the residuals of a right eye injury. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In September 2006, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed the Veteran that in order to establish an increased rating for his service-connected disability, the evidence had to show that such disability had worsened and the manner in which such worsening had affected his employment and daily life. 38 U.S.C.A. § 5103(a). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. That duty requires VA to make reasonable efforts to obtain relevant records (including private records) that the Veteran adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1) (West 2002 and Supp. 2009). However, the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103 (West 2002 and Supp. 2009). In this case, VA obtained or ensured the presence of records reflecting the Veteran's VA treatment from August 2004 to October 2010, as well as the transcript of his June 2011 video conference with the undersigned Acting Veterans Law Judge. In December 2006 and October 2009, VA examined the Veteran to determine the extent of impairment attributable to his service-connected residuals of a right eye injury. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his current medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis During his June 2011 video conference with the undersigned, the Veteran testified that the 30 percent rating for his service-connected residuals of a right eye injury did not adequately reflect the level of impairment caused by those residuals. He stated that at times, his right eye hurt and that at times it itched. He also stated that it was dry, that he had poor visual acuity, and that he had a spot on his eye which had grown larger over the years. Therefore, he maintained that a rating in excess of 30 percent was warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2010). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. When the Veteran filed his claim in September 2006, the residuals of an unhealed eye injury were rated in accordance with 38 C.F.R. § 4.84(a), Diagnostic Code 6009. In chronic form, such residuals were rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, and rest requirements, or episodic incapacity, combining an additional rating of 10 percent during the continuance of active pathology. The minimum rating during active pathology was 10 percent. When the Veteran filed his claim, the severity of impaired central visual acuity was determined by comparing visual test results on the Snellen index with the criteria set forth in 38 C.F.R. § 4.84(a), Diagnostic Codes 6061 to 6079. The best distant vision obtainable after best correction by glasses was the basis for rating visual acuity, except in cases of keratoconus in which contact lenses were medically required. 38 C.F.R. § 4.75 (2006). Where there was a substantial difference between the near and distant vision, the case was to be referred to the Director of the VA Compensation and Pension Service. 38 C.F.R. § 4.84 (2006). A 30 percent disability rating was warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity in both eyes was 20/70; (2) corrected visual acuity in one eye was 20/100 and the other eye was 20/70; (3) corrected visual acuity in one eye was 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye was 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye was 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye was 5/200 and 20/40 in the other eye ; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6070, 6074, 6076, 6077, 6078 (2006). A 40 percent disability rating was warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye was to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye was to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye was to 10/200 and 20/50 in the other eye; (4) corrected visual acuity was to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes, 6066, 6070, 6073, 6076 (2006). When the Veteran filed his claim, visual field impairment was rated in accordance with 38 C.F.R. § 4.84(a), Diagnostic Code 6080. The method for determining the extent of the contraction of the visual field was set forth in 38 C.F.R. §§ 4.76, 4.76a. A 30 percent rating was warranted when the visual field in one eye had been contracted to 5 degrees. That was the highest schedular evaluation possible when only one service-connected eye was involved. 38 C.F.R. § 4.84(a), Diagnostic Code 6080 (2006). Where, as here, the Veteran had service-connected disability in one eye only and nonservice-connected disability in the other eye, the visual acuity in the eye having nonservice-connected disability was considered normal for the purposes of computing the service-connected disability rating, unless the Veteran was totally blind in both eyes. That interpretation of the rating schedule corresponded to the interpretation of the rating schedule for unilateral hearing loss. 38 C.F.R. § 4.85(f); Boyer v. West, 11 Vet. App. 477, 479-80 (1998); Vet. Aff. Op. Gen. Couns. Prec. 32-97 (Authority for Evaluating Unilateral Hearing Impairment, 62 Fed. Reg. 63,605 (1997)). During the course of the appeal, VA revised the regulations relevant to rating disabilities of the eye. Schedule for Rating Disabilities; Eye, 73 Fed. Reg. 66,543 (November 10, 2008). Those revisions became effective December 10, 2008, and applied to all applications for benefits received by VA on or after that date. As the Veteran's increased rating claim was received prior to December 10, 2008, the revised regulations do not apply. Where there is a question as to which of two evaluations should be applied, the higher evaluation is to 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A review of the evidence discloses that the Veteran's 30 percent schedular rating for his service-connected right eye disability has been in effect since August 1960. Because that rating has been in effect, continuously for more than 20 years, it is protected, and, absent fraud, will not be reduced. 38 C.F.R. § 3.951(b) (2010). In this case, there is no evidence of fraud. As noted above, service connection is only in effect for the Veteran's right eye; and his VA outpatient treatment records, such as that dated in April 2006, show that the corrected visual acuity in his right eye is no worse than 20/400. In fact, the most recent VA treatment records, dated in March and October 2010, show that his corrected distant visual acuity is no worse than 20/80 -2. As to the Veteran's nonservice-connected left eye, the evidence, such as the reports of his the December 2006 and October 2009 VA examinations, show that the Veteran is not blind in that eye. Indeed, his corrected visual acuity for distance in his nonservice-connected left eye is at least 20/30. Under the schedular criteria in effect at the time the Veteran filed his claim, such visual acuity warranted no more a 30 percent rating. 38 C.F.R. § 4.84a, Diagnostic Code 6070 (2006). Accordingly, an increased schedular rating was not warranted on the basis of worsened visual acuity. A further review of the evidence, such as the report of the October 2009 VA examination, suggests that the Veteran may also have a visual field defect associated with his service-connected residuals of a right eye injury. However, even if that is the case, a visual field defect in one eye merits no more than a 30 percent schedular rating under the law and regulations in effect at the time the Veteran filed his claim for an increased rating. 38 C.F.R. § 4.84a, Diagnostic Code 6080. In this regard, he complains of right eye pain. However, the evidence is negative for any reports the Veteran's right eye disability requires him to rest. Therefore, he does not meet the criteria for an increased schedular rating on that basis. The only remaining avenue for an increased rating on a schedular basis under the applicable law and regulations was to demonstrate episodic incapacity or active pathology associated with the Veteran's residuals of a right eye injury. In this case, however, the evidence of record is negative for any objective findings of episodic incapacity, and the evidence, such as the October 2009 VA examination report, shows that the scar is well-healed without active pathology. Moreover, that report, as well as the one completed in December 2006, shows that the Veteran's right eye disability, has no significant affect on his ordinary life, such as his occupational capability or on his ability to perform the activities of daily living. Accordingly, an increased schedular rating is not warranted on the basis of episodic incapacity or active pathology. Inasmuch as the Veteran does not meet the schedular criteria for a rating in excess of 30 percent for his service-connected residuals of a right eye injury, that rating is confirmed and continued, and the appeal is denied. In arriving at this decision, the Board has considered the Veteran's June 2011 request for another VA examination. VA examinations are scheduled when the medical evidence accompanying a particular claim is not adequate for rating purposes. 38 C.F.R. 3.326(a) (2010). In this case, however, the medical evidence is adequate for rating purposes. Reexaminations are performed whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2010). When requesting a reexamination in connection with a rating increase, the Veteran must come forward with at least some evidence that there has in fact been a material change in his or her disability. A bald, unsubstantiated claim for an increase in disability rating is not evidence of a material change in that disability and is insufficient to trigger VA's responsibility to request a reexamination. Glover v. West, 185 F.3d 1328 (Fed. Cir. Aug. 2, 1999), mot. for rehearing en banc denied, No. 99-7015 (Fed. Cir. Oct. 19, 1999) (en banc) (unpublished order), cert. denied, 120 S. Ct. 1960 (S. Ct. May 15, 2000) (No. 99-1191). In this case, the Veteran has not presented any evidence that his service-connected residuals of a right eye injury has been productive of any material change in disability. Rather, the evidence, such as the reports of the December 2006 and October 2009 VA examinations and the subsequent VA outpatient treatment records, consistently shows that the manifestations of Veteran's right eye disability are well-contemplated by his current disability rating. Therefore, a reexamination is not warranted, and one will not be scheduled. Finally, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for approval of an extraschedular rating for the Veteran's right eye disorder. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of h hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, the Veteran and his representative have not identified, and the Board has not found, any factors which may be considered to be exceptional or unusual with respect to the service-connected residuals of a right eye injury. In this regard, the record does not show that the Veteran has required frequent hospitalizations for that disorder. Indeed, no unusual clinical picture has been presented, nor is there any other factor which takes the disability outside the usual rating criteria. In short, the evidence does not support the proposition that the Veteran's right eye disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1). ORDER Entitlement to a rating in excess of 30 percent for the residuals of a right eye injury is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs