Citation Nr: 1302186 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 09-02 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for bilateral cataracts. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bilateral cataracts and assigned a noncompensable (0 percent) disability rating, effective February 2006. In August 2012, the Veteran was afforded his requested Board hearing at the local RO (Travel Board hearing) before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. In September 2012, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for the Veteran to be scheduled for a Board hearing. The Board, at that time, was unaware that the Veteran had already been afforded a Board hearing in August 2012. The AMC acknowledged that the Veteran had already been afforded a Board hearing, and the case has now been returned to the Board for appellate disposition. FINDING OF FACT The Veteran's corrected visual acuity is no worse than 20/40 bilaterally, and there is no evidence of any visual field impairment. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral cataracts are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.84a, Diagnostic Code (DC) 6028 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty 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, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in April 2006 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The April 2006 letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should his claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. He was also afforded the opportunity for a personal hearing. Additionally, the RO and AMC arranged for VA compensation examinations to assess the severity of the Veteran's service-connected bilateral cataracts, which is the determinative downstream issue since his appeal is for an increased rating for this disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994). The record is adequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2012). Here, the most recent VA compensation examination of the service-connected disability was provided in April 2012. The report of that evaluation contains all findings needed to properly evaluate his service-connected disability. 38 C.F.R. § 4.2 (2012). Consequently, another examination to evaluate the severity of the service-connected bilateral cataracts is not warranted because there is sufficient evidence already of record to fairly decide the claim. See Caffrey, 6 Vet. App. at 377; Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Finally, the Board is satisfied as to substantial compliance with its September 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As previously stated, the appeal was remanded so that the Veteran could be scheduled for a Board hearing. The Board, at that time, was unaware that the Veteran had already been afforded a Board hearing in August 2012. The AMC acknowledged that the Veteran had already been afforded a Board hearing, and the case was then returned to the Board for appellate disposition. Thus, there has been substantial compliance with the September 2012 remand directives. Id. III. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). At the outset, the Board observes that the Veteran expressed his timely disagreement with the December 2006 rating decision that granted him service connection for his bilateral cataracts. As such, the Veteran appealed the initial evaluation assigned for his bilateral cataracts. Thus, the severity of his service-connected bilateral cataracts is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is currently in receipt of a noncomepnsable (0 percent) evaluation for his bilateral cataracts under DC 6028. 38 C.F.R. §§ 4.75, 4.76, 4.77, 4.78, 4.79. The Board notes that the criteria for the evaluation of disabilities of the eyes were amended effective December 10, 2008. However, these amended criteria govern cases only when the claim is filed on or after that date. 73 Fed. Reg. 66543 (November 10, 2008). Here, the Veteran filed his claim for service connection for bilateral cataracts (which was eventually granted) in February 2006. Thus, the revised rating criteria effective December 10, 2008, are not applicable here. Under 38 C.F.R. § 4.84a , DC 6028 (2008), senile and other preoperative cataracts are rated on impairment of vision. Senile and other postoperative cataracts are rated on impairment of vision and akaphia. The evidence of record establishes that the Veteran previously had extraocular muscle surgery for his non-service-connected strabismus (exotropia) of the eyes. However, to date, the Veteran has not had surgery performed on his eyes because of his service-connected cataracts. Therefore, the Board will only discuss the criteria pertain to preoperative cataracts, as opposed to postoperative cataracts. A compensable rating for loss of visual acuity requires that corrected vision be 20/40 or worse in one eye and 20/50 or worse in the other. 38 C.F.R. § 4.84(a), DCs 6078, 6079. The ratings increase in 10 percent increments according to the levels of vision impairment with the greatest award of 100 percent assignable for visual acuity of 5/200 in each eye. 38 C.F.R. § 4.84(a), DCs 6063-6078 (2008). The Veteran has undergone two VA examinations for his service-connected eye disability. At the first examination in August 2006, the Veteran reported that his disability does not cause incapacitation. He described difficulty in performing tasks due to his double vision. During the examination, the Veteran's uncorrected distance and near visual acuity were not obtained. His corrected distance visual acuity was 20/30 in each eye. His corrected near visual acuity was 20/25 in each eye. The Veteran was diagnosed with mild bilateral cataracts. The examiner stated that the subjective factors of the bilateral cataracts were double vision, and the objective factors were lens opacification. The examiner also diagnosed the Veteran with strabismus (extropia). The examiner stated that the subjective factors of the strabismus were double vision. The objective factors of the strabismus were a history of extraocular muscle surgery and the need for prisms in the Veteran's glasses. The Veteran is not currently service-connected for his strabismus. The Veteran is only service-connected for bilateral cataracts. Therefore, the Board cannot consider the strabismus symptoms in determining the appropriate disability rating for the Veteran's service-connected bilateral cataracts. The Veteran underwent a second VA eye examination in April 2012. The Veteran told the VA examiner that he had strabismus surgery in March 1997, but he had not undergone any other eye surgeries. Upon examination, the examiner found that the Veteran had uncorrected distance visual acuity of 20/400 in each eye. The Veteran had corrected distance visual acuity of 20/30 in each eye. The Veteran had uncorrected near visual acuity of 20/25 in each eye. The Veteran had corrected near visual acuity of 20/25 in each eye. The Veteran was diagnosed with senile cataracts, congenital nystagmus, and exotripia. The VA treatment records do not provide contrary results to those obtained at the VA examinations. Accordingly, the evidence of record shows that the Veteran has not met the criteria for a compensable rating for his eye disability. Again, under the applicable DC, preoperative cataracts are to be rated on the basis of visual impairment (there is no evidence that the Veteran's cataracts have been operated on). 38 C.F.R. § 4.84a, DC 6028. To qualify for a compensable rating for impaired vision, the Veteran would have to have corrected vision of 20/40 or worse in one eye and 20/50 or worse in the other. 38 C.F.R. § 4.84(a), DCs 6078, 6079. The Veteran does not meet these criteria. As such, based on the evidence of record, the Board finds that there is no basis for an evaluation under 38 C.F.R. §§ 4.84a, DC 6028, in excess of the currently assigned noncompensable rating. Here, the Board is cognizant of, and has carefully considered, the Veteran's subjective reports. However, none of the criteria required for a higher rating were diagnosed or objectively noted. The treatment notes of record similarly do not provide objective support for a higher rating. Under these circumstances, the overall evidence does not meet or approximate the criteria for a compensable disability rating for the Veteran's service-connected bilateral cataracts under 38 C.F.R. §§ 4.84a. Throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by his current evaluation. For these reasons, an increased rating is not warranted. III. Extraschedular Evaluation 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). According to the regulation, 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. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. 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 does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant'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 Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of 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 Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran does not meet the criteria for an extraschedular rating. Again, the evidence shows that the Veteran suffers from impaired corrected vision as a result of his service-connected cataracts, but that this impairment is not so severe as to warrant a compensable rating. As impaired central visual acuity is specifically provided for under the applicable rating criteria for cataracts, the first threshold of the Thun framework is not met, ending the Board's inquiry. 22 Vet. App. at 115. IV. TDIU Evaluation Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to a service-connected disability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, a TDIU issue is not raised by the record. At the recent VA examination in April 2012, the VA examiner determined that the Veteran's service-connected bilateral cataracts do not impact his ability to work. Throughout his appeal, the Veteran has not indicated that his bilateral cataracts cause problems with his employment. Therefore, consideration of a TDIU is not warranted. ORDER An initial compensable disability rating for the bilateral cataracts is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs