Citation Nr: 1220992 Decision Date: 06/15/12 Archive Date: 06/22/12 DOCKET NO. 09-25 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable rating for bilateral peripheral arterial disease (PAD) of the lower extremities. 2. Entitlement to a compensable rating for bilateral cataracts. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran served on active military duty from November 1967 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating action of the Department of Veterans Affairs Regional Office (RO) in Houston, Texas. In that decision, the RO continued the noncompensable rating for bilateral cataracts and granted a separate noncompensable evaluation for bilateral PAD. In March 2012, the Veteran testified before the undersigned at a Board hearing. A transcript of that decision has been associated with the file. In December 2009, service connection was granted for peripheral neuropathy and carpal tunnel syndrome of the upper extremities as well as diabetic retinopathy. No notice of disagreement follows this rating and these matters are not on appeal at this time. FINDINGS OF FACT 1. PAD of the lower extremities does not cause claudication on walking more than 100 yards, and diminished peripheral pulses or ankle/brachial index (ABI) of 0.9 or less. 2. Bilateral cataracts are manifested by distant vision typically corrected to 20/20 (but at worst corrected to 20/30 in the right eye and 20/25 in the left); normal visual fields; and normal muscle function. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for PAD of the lower extremities are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104, Diagnostic Code (DC) 7114 (2011). 2. The criteria for a compensable disability rating for cataracts are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.2, 4.3, 4.7, 4.10, 4.75, 4.76, 4.76a, 4.77, 4.84, 4.84a, Diagnostic Code 6028 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist In a September 2008 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011) and 38 C.F.R. § 3.159(b) (2011). This letter addressed an increased rating for cataracts. The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In the letter, the Veteran was informed of the process by which effective dates are established, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). A decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was given the rating criteria for the current rating in effect in a May 2009 letter. The Board finds that the Veteran has received adequate notice regarding his increased rating claim. In an October 2008, the RO granted a separate noncompensable rating for bilateral PAD. The Veteran disagreed with this initial rating in January 2009. 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). The Board finds the Veteran was given proper notice regarding his increased rating claim in the September 2008 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2011). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his or her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran was given multiple VA examinations for the disabilities on appeal. Service treatment records, as well as VA treatment records, are in the file. After the March 2012 Board hearing, the Veteran submitted more recent VA records and waived RO consideration of these records. The duty to assist has been met. In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge described the issue on appeal and suggested that any evidence tending to show that pertinent disability had increased in severity would be helpful in establishing the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. Legal Criteria and Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2011). Also, for initial rating decisions that establish service connection and assign an initial disability rating, the entire period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2011). For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2011). In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). For example, in Barr, the United States Court of Appeals for Veterans Claims (Court) held that varicose veins were a disability that was capable of lay observation for the purpose of establishing service connection. Under 38 C.F.R. § 3.159(a)(2) (2011), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board must also assess the credibility, and therefore the probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). PAD PAD is rated analogous to arteriosclerosis obliterans, 38 C.F.R. §§ 4.20, 4.104 (2011), DC 7114. Under this code, a 20 percent rating is warranted when there is claudication on walking more than 100 yards and diminished peripheral pulses or where there is an ABI of 0.9 or less. A 40 percent rating is warranted when there is claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour; and trophic changes (thin skin, absence of hair, and dystrophic nails) or an ABI of 0.7 or less. A 60 percent rating is warranted when there is claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or an ABI of 0.5 or less. A 100 percent rating is warranted when there is ischemic limb pain at rest and either deep ischemic ulcers or ABI of 0.4 or less. Note (1) to DC 7114 states that the ABI or ankle/brachial index is the ration of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure (a normal ABI is 1.0 or greater). Note (3) states that evaluations are for involvement of a single extremity; if more than one extremity is affected, each should be evaluated separately and combined under § 4.25 (combined rating table) using § 4.26 (the bilateral factor). The Board does not find that a compensable rating is warranted for PAD in this case because the evidence shows that it has not increased in severity and the exhibited symptoms do not meet or approximate the criteria for a compensable evaluation. At the May 2008 contract VA examination for diabetes mellitus, he described symptoms of claudication after walking 20 yards on level ground at 2 miles per hour but peripheral pulses were normal. The Doppler vascular report (from the same month) was suggestive of mild to moderate atherosclerotic disease in the runoff arteries (anterior and posterior tibial arteries bilaterally). The findings suggested the presence of calcified and in compressible lower extremity vessels bilaterally but the ABI was not .9 or less; it was 1.3 on the right and 1.4 on the left. Other findings at the May 2008 examination were numbness of the fingers, legs, and toes (the Veteran is service-connected for peripheral neuropathy) as well as a progressive loss of strength. There was calf pain at rest but not persistent coldness of the extremities. The Veteran was impotent but had no skin disease. Extremities and a neurological examination were normal. He did have abnormal sensory function to the bilateral feet up to the ankles. The diagnosis was peripheral arterial disease (PAD). A later VA examination in October 2009 also did not show findings warranting a compensable rating for PAD. The Veteran stated at this examination he did not know he was diagnosed with PAD. He had cramping with strenuous exertion only but not walking; it was relieved by rest. Symptoms did not occur at rest. He denied coolness or edema. The past Doppler study in 2008 was noted. The course of PAD was stable. There was no abnormal coloring of the legs, trophic changes, or ulceration. Temperature and pulses were normal bilaterally. A December 2009 VA study showed that Doppler waveforms were normal at all segments bilaterally with no evidence of PAD and the index not .9 or less. The vascular surgeon noted that no surveillance study was needed based on the current results. At the October 2009 VA examination for his service-connected peripheral neuropathy, the Veteran reported that his feet "burned" and he has hot sensations, not cold. Any difficulty walking was secondary to pain and tightness in his calves; this was brought on by walking two blocks and relieved with rest. At the general VA examination (the same month) again no skin symptoms or abnormalities were noted. No aids were needed for walking and his gait was normal. Extremities were normal-including pulses, temperature and skin color. He did have numbness and tingling due to the peripheral neuropathy. The examiner concluded the PAD had no change since the October 2008 rating, specifically noting the intact pulses in both distal extremities. The examiner found symptoms reported were more consistent with restless leg syndrome and diabetic neuropathy. While claudication was reported by the Veteran at the October 2009 diabetes mellitus VA examination, trophic changes, diminished peripheral pulses and/or an ABI of 0.9 or less has not been shown. At the March 2012 hearing, the Veteran said he was able to walk about a hundred yards or so and then would stop to rest for about fifteen minutes. (Transcript, p 8.) He could walk about a mile this way. Id. The Board finds the Veteran to be competent to report his symptoms but finds that over time his report of how much he was able to walk has varied (see the May 2008 examination). As a result, his statements and testimony are assigned less weight. Considering all evidence, the Board finds that a noncompensable rating best approximates the PAD disability picture. 38 C.F.R. § 4.104, DC 7114. While some claudication might have been shown, diminished peripheral pulses, an ABI of 0.9 or less, trophic changes, persistent coldness, ulcers and ischemic limb pain have not been shown. The Board has considered whether a staged rating is appropriate, as mandated by Hart, 21 Vet. App. 509-510. As the Veteran's symptoms remained constant throughout the course of the period on appeal staged ratings are not warranted. The Board has also considered whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Thun v. Peake, 22 Vet. App. at 115. The Board finds here that the schedular rating is appropriate for the disability based on the evidence. The Board has considered the application of Rice v. Shinseki, 22 Vet. App. 447 (2009) in conjunction with this claim. In December 2007, the Veteran raised the issue of a total disability rating for individual unemployability (TDIU) when he stated that he could not keep a full-time job due to all of his service-connected disabilities and other problems. This claim was denied by RO in April 2010, the Veteran did not file a notice of disagreement, and the Board finds TDIU has not been re-raised during the course of this increased rating claim. The Board finds an increased rating is not warranted. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). Cataracts The Veteran is service-connected for bilateral cataracts as part of his service-connected type II diabetes mellitus rating under 38 C.F.R. § 4.119, DC 7913. Service connection for noncompensable diabetic retinopathy was also granted as secondary to service-connected diabetes mellitus in a December 2009 RO decision; there was no notice of disagreement with the assigned rating for retinopathy and this issue is not before the Board at this time. While this appeal was pending, the rating schedule for evaluating disabilities of the eyes was revised and amended. See 73 Fed. Reg. 66543-54 (Nov. 10, 2008). Diseases of the eye are now rated under a General Rating Formula, under 38 C.F.R. § 4.79 (2011). However, as the new criteria are only applicable to claims filed on or after December 10, 2008, and the Veteran's claim was pending prior to that time, the Board will only consider the criteria under the prior regulations set forth under 38 C.F.R. §§ 4.75, 4.76, 4.77 4.84, 4.84a (2008). Preoperative senile and other cataracts (excluding traumatic, which is DC 6027) are rated on impairment of vision. 38 C.F.R. § 4.84a. Impairment of vision includes an examination of the visual acuity (§ 4.75), field of vision (§ 4.76) and muscle function (§ 4.77). For visual acuity, § 4.75 states that funduscopic and ophthalmological findings must be recorded. The best distant vision obtainable after correction by glasses will be the basis of rating (except keratoconus). Id. If there is a difference of more than 4 diopters of spherical correction between the two eyes, the best possible visual acuity of the poorer eye without glasses, or with a lens of not more than 4 diopters difference from that used with the better eye will be taken as the visual acuity of the poorer eye. Id. Also, if there is a substantial difference between the near and distant corrected vision, the case should be referred to the Director of Compensation and Pension Service. 38 C.F.R. § 4.84. Impairment of central visual acuity is assessed by using table V; compensable impairment of 10 percent starts when the visual acuity is at least 20/50 in at least one eye. 38 C.F.R. § 4.84a, DC 6079, Table V. For field vision, measurement is made when there is a disease of the optic nerve or when otherwise indicated. 38 C.F.R. § 4.76. For muscle function, the measurement of muscle function will be undertaken only when the history and findings reflect disease or injury of the extrinsic muscles of the eye, or of the motor nerves supplying these muscles. 38 U.S.C.A. § 4.77. The Board has considered the other regulations involving the eye, but does not find them applicable to this case. The Board does not find a compensable rating is warranted for the service-connected cataracts. For visual acuity, most evidence shows it is correctable to 20/20. A December 2005 VA contract examination showed funduscopy was within normal limits and right and left vision was corrected to 20/20. Mild cataracts in both eyes were noted at this time. A February 2007 VA eye record showed an occasional view suggested a cotton-wool patch in the left posterior pole. The right eye was 20/20-3 and left eye was 20/20-1. He wore readers that were +1.50. At the April 2008 VA examination, right eye vision corrected to 20/30+ and left eye vision corrected to 20/25. At a May 2008 contract VA examination for diabetes mellitus, the funduscope was within normal limits. At the October 2009 VA examination for the eye, the Veteran claimed he had excellent visual acuity at 20/15 in both eyes. The Veteran had uncorrected visual acuity of 20/20 in both eyes (no correction was needed). The examiner noted VA medical records and the file were reviewed. Finally, at a September 2011 VA eye appointment, it was noted the Veteran was status post excision of pterygium in the left eye and doing well. His vision corrected to 20/20. The Board finds a compensable rating is not warranted under the visual acuity DCs. No compensable rating is warranted for field vision either. At the December 2005 contract VA eye examination, the visual fields were within normal limits. A February 2007 VA eye record noted a normal visual field ("full to count fingers"). An April 2008 VA eye examination showed no glaucoma. The visual field perimeter charts were grossly normal. In October 2009, the VA eye examination report stated that no Goldmann field testing was indicated at the time based on the examination findings. For muscle function, the evidence shows the Veteran does not have diplopia, all Goldmann perimeter tests were within normal limits and he has full motility of both eyes. (See December 2005 contract VA examination, February 2007 VA eye record and April 2008 VA eye examination report.) As a result, the Board finds an increased rating is not warranted under § 4.77. The Board finds the Veteran competent to report bleeding in eyes (see December 2007 claim) as well as pain, distorted vision, water, and blurred vision but no enlarged images, redness, swelling or discharge (see April 2008 VA examination). He is competent to observe and experience such symptoms. See Barr, 21 Vet. App. 303, Layno, 6 Vet. App. 465. At the March 2012 Board hearing, he said he used medications and as long as he did that his disability was manageable (Transcript, p 3). He said his field of vision was good. (Transcript, p 5.) He was ok with distant vision, but needed glasses to see up close or read. (Transcript, p 9.) The Board finds the Veteran has been relatively credible in his report of symptoms, although he was examined several time for his eyes and no bleeding was ever found; his statements are assigned some weight. Caluza, 7 Vet. App. 498. The Veteran is not competent to state his disability has increased in severity because that is not a determination for lay person and requires specialized education and experience. 38 C.F.R. § 3.159(a)(2). Considering the evidence as a whole, the Board finds that the disability picture best approximates a noncompensable rating. No increase is warranted based on the impact of the service-connected cataracts on the visual acuity, field vision, and muscle function. The Board has considered whether a staged rating is appropriate. See Hart, 21 Vet. App. 509-510. The Board finds the Veteran's symptoms remained constant throughout the course of the period on appeal staged ratings are not warranted. The Board finds the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology based on the evidence. Thun v. Peake, 22 Vet. App. at 115. As stated, TDIU was raised as being due to all service-connected disabilities and denied by the RO in April 2010; the Board finds it has not been re-raised in the course of this increased rating claims and the Veteran has not filed a notice of disagreement. See Rice, 22 Vet. App. 447. The Board finds an increased rating is not warranted. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to a compensable rating for bilateral peripheral artery disease is denied. Entitlement to a compensable rating for bilateral cataracts is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs