Citation Nr: 1301237 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 08-22 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an extraschedular rating greater than 10 percent for bilateral vitreous floaters, beginning April 6, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which assigned an initial noncompensable rating for the Veteran's service-connected bilateral vitreous floaters. Service connection for that disability had been granted by the Board in an August 2007 decision. The claims folder is currently under the jurisdiction of the Cheyenne, Wyoming, RO. When this case was previously before the Board in November 2009, it was remanded for additional development. In a February 2011 rating decision, the RO increased the rating of the Veteran's bilateral vitreous floaters to 10 percent, effective April 6, 2010. In a May 2011 decision, the Board denied an initial compensable schedular disability rating prior to April 6, 2010. The Board also denied a schedular disability rating greater than 10 percent beginning April 6, 2010. The Board remanded the issue of entitlement to an extraschedular rating greater than 10 percent beginning April 6, 2010, for development. In a January 2012 letter, the Director of the Compensation and Pension Service (Director) denied entitlement to an increased evaluation on an extraschedular basis. A February 2012 supplemental statement of the case also denied the claim. FINDINGS OF FACT 1. Pursuant to the Board's May 2011 remand and the provisions of 38 C.F.R. § 3.321(b)(1), the Director denied entitlement to an increased evaluation on an extraschedular basis for the Veteran's bilateral vitreous floaters. 2. The evidence of record does not show that, beginning April 6, 2010, the Veteran's service-connected bilateral vitreous floaters, rated 10 percent disabling on a schedular basis, have resulted in an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards; beginning April 6, 2010, this disability has not necessitated frequent hospitalizations, nor has it caused marked industrial impairment. CONCLUSION OF LAW The criteria for the assignment of an extraschedular rating greater than 10 percent for bilateral vitreous floaters, beginning April 6, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102 , 3.159, 3.321(b), 3.326 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. 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). VA did advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. A June 2008 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law concerning extraschedular evaluations. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an extraschedular evaluation for the service-connected disability at issue. The duty to assist the Veteran in the development of the claim is not abrogated by the granting of service connection. The claims file contains the Veteran's service treatment records, VA and private medical records, the transcript of a September 2009 hearing before the undersigned Veterans Law Judge, and the Veteran's statements. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. A VA examination with respect to the Veteran's claim was conducted on April 6, 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the April 2010 VA examination in this case was more than adequate. The examination report provides clinical findings which are pertinent to the criteria applicable for rating the Veteran's disability. It also identifies the effects of the Veteran's disability on his performance at work. Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of an additional examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to this issue has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis The Veteran's bilateral vitreous floaters have been rated 10 percent disabling, from April 6, 2010, under 38 C.F.R. § 4.84a, Diagnostic Code 6009 (2008) (i.e., as in effect prior to December 10, 2008). Under this Diagnostic Code, injuries to the eye are rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. Id. Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Under 38 C.F.R. § 3.321(b)(1) ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case represents 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. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an evaluation on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the RO or Board must specifically decide whether to refer the claim to the Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board previously determined in the May 2011 remand that the question of whether the Veteran was entitled to an increased evaluation on an extraschedular basis had been raised, and referred the claim to the Director of VA's Compensation and Pension Service on an extraschedular basis. A January 2012 letter from the Director of the Compensation and Pension Service (Director) conceded that the Veteran's service-connected floaters caused interference with the Veteran's employment by causing "incapacitating episodes" affecting his near and far ranges of vision. The Director stated that, however, the Veteran's current schedular evaluation was based on "incapacitating episodes" caused by the service-connected disability. The Director concluded that entitlement to an increased evaluation on an extraschedular basis for the Veteran's service-connected bilateral vitreous floaters was therefore unwarranted. Following a review of the claims file, the Board finds that the evidence of record does not demonstrate that, beginning April 6, 2010, the Veteran's bilateral vitreous floaters had resulted in frequent periods of hospitalization or marked interference with employment in excess of what is contemplated in a schedular rating so as to render impractical the schedular rating criteria. A VA examination in March 2004 noted corrected visual acuity of 20/20 in each eye following Lasik surgery. The Veteran submitted a statement dated in August 2009 from a private optometrist, S. A. L., O. D., who noted the Veteran had large floaters which would at times obscure his vision "just like a cloud will obscure vision of the sky." The optometrist stated that the Veteran's worst vision of 20/400 could preclude him from driving and hamper his ability to perform any meaningful work-related activities. The optometrist recommended vitrectomy surgery. A VA examination conducted on April 6, 2010, found corrected visual acuity of 20/20 in each eye. The examiner noted that it appeared that 5 out of every 20 seconds the Veteran had one eye that was not seeing well due to the floaters; that when the floaters moved over the macula his acuity dropped dramatically, to approximately 20/400; and that the Veteran indicated that his floaters had caused marked interference with his employment by making it so that he could not see his computer screen. The Veteran reported that the duration and frequency of periods of incapacitation and rest requirements depended on the amount of time spent in front of a computer screen or driving, and a good night's sleep. He stated that he usually did "OK" at work until about 3:00 in the afternoon. Then he had a tough time driving or looking at the computer screen. The examiner stated that the Veteran had moderately severe floaters which affected his vision, but that his symptoms were greater than would be expected given his signs. The examiner recommended a vitrectomy which would likely cause the Veteran's symptoms to disappear. Upon review of the evidence of record, the Board finds that the Veteran is not entitled to an extraschedular rating greater than 10 percent for bilateral vitreous floaters, beginning April 6, 2010. The evidence does not demonstrate that his disability has produced an exceptional or unusual disability picture with such related factors as frequent hospitalization or marked interference with employment to render impractical the application of the regular schedular standards. Specifically, there is no evidence that the Veteran's service-connected bilateral vitreous floaters have resulted in the Veteran having frequent periods of hospitalization for related symptoms. Further, there is no evidence that the Veteran's service-connected bilateral vitreous floaters have caused marked interference with employment beyond that contemplated by the schedular 10 percent evaluation. In this regard, the Board points out that the intermittent impairment of visual acuity caused by his service-connected bilateral vitreous floaters is already contemplated by the schedular 10 percent evaluation as "episodic incapacity." See Diagnostic Code 6009. Moreover, the Veteran's own assertions, set forth in the April 2010 VA examination report, fail to show marked interference with employment beyond that contemplated by the schedular 10 percent evaluation. The Board does not doubt that limitation caused by the Veteran's service-connected bilateral vitreous floaters has an adverse impact on his employability; however, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. In fact, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289 (1992); Van Hoose v. Brown, 4 Vet. App. 361 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Consequently, the Board finds that the Veteran's service-connected bilateral vitreous floaters are not manifested by an exceptional or unusual disability picture to render impractical the application of the regular schedular standards. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990). ORDER Entitlement to an extraschedular rating greater than 10 percent for bilateral vitreous floaters, beginning April 6, 2010, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs