Citation Nr: 1302385 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 06-17 951A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable rating for atherosclerotic hypertensive retinal vascular changes, effective March 9, 2004 through July 25, 2007. 2. Entitlement to a rating in excess of 50 percent for atherosclerotic hypertensive retinal vascular changes, effective July 26, 2007 to September 10, 2007. 3. Entitlement to a rating in excess of 30 percent for atherosclerotic hypertensive retinal vascular changes, effective September 11, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. From March 9, 2004 to July 25, 2007, the Veteran's disability did not cause a visual field constriction to 60 degrees or less, or visual acuity limited to 20/50 in both eyes due to a physical impairment. 2. From July 26, 2007 to September 10, 2007, the Veteran's disability did not cause a visual field constriction to 15 degrees bilaterally, and did not limit visual acuity to 20/200 in one eye and 20/100 in the other eye due to a physical impairment. 3. Beginning September 11, 2007, the Veteran's disability did not cause a visual field constriction to 30 degrees bilaterally and did not limit visual acuity to 20/200 in one eye and 20/70 in the other eye due to a physical impairment. 4. The Veteran does not have an organic visual impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for atherosclerotic hypertensive retinal vascular changes from March 9, 2007 to July 25, 2007 were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.84a, Diagnostic Codes 6061 to 6079, 6080 (2008). 2. The criteria for a rating in excess of 50 percent for atherosclerotic hypertensive retinal vascular changes from July 26, 2007 to September 10, 2007 were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.84a, Diagnostic Codes 6061 to 6079, 6080. 3. The criteria for a rating in excess of 30 percent for atherosclerotic hypertensive retinal vascular changes for the period beginning September 11, 2007 were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.84a, Diagnostic Codes 6061 to 6079, 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Insofar as service connection, and initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA fulfilled its duty to assist the Veteran with obtaining identified and available evidence needed to substantiate his claims, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of the adjudication. 38 C.F.R. § 3.159(c). Initial Rating The Veteran contends that the symptoms of his eye disability are worse than is contemplated by the ratings that were assigned for that disability over time. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases, such as this one, in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran's claim was filed prior to December 10, 2008, so the regulations applicable to rating eye disorders prior to that time are applicable to this claim. The new diagnostic codes apply only to claims filed on or after that date. 73 Fed. Reg. 66543-3 (Nov. 10, 2008). In this regard, the Veteran's atherosclerotic hypertensive retinal vascular changes are rated by analogy on the basis of the associated impairment of his fields of vision. 38 C.F.R. §§ 4.76, 4.84a, Diagnostic Code 6080 (2008). The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in table III of 38 C.F.R. § 4.76a. The degrees lost are then added together to determine total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by eight represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2008). Pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6080, where there is bilateral concentric contraction of the visual fields to 15 degrees but not to 5 degrees, a 70 percent rating is assigned. Where there is bilateral concentric contraction of the visual fields to 30 degrees but not to 15 degrees, a 50 percent rating is assigned. Where there is bilateral concentric contraction to 45 degrees but not to 30 degrees, a 30 percent rating is assigned. Finally, where there is bilateral concentric contraction of the visual fields to 60 degrees but not to 45 degrees a 10 percent rating is assigned. Where there is visual acuity correctable to 20/40 or better in each eye a noncompensable rating is in order. 38 C.F.R. § 4.84a. The Veteran's eyes were examined by VA in July 2004. At that time, the Veteran reported that his vision had become slightly more blurred. With correction his vision was 20/20 in both eyes. Field of vision was not tested at that time. The examiner diagnosed refractive error and mild atherosclerotic/hypertensive vascular changes. Private treatment records from 1999 through October 2003 indicated the Veteran had corrected visual acuity of 20/20 in both eyes. In October 2005 the Veteran described transient attacks of blindness to Lisa Bell, O.D. Examination revealed mild nuclear ventricular sclerosis. Visual acuity was 20-2/20 in both eyes. The Veteran was referred to a medical doctor for further investigation. It is not documented that any physical basis for these episodes was found. In his notice of disagreement, the Veteran contended that he should receive a compensable rating for his eye disorder because he needed new glasses. He also mentioned that his eye doctor considered the possibility of a stroke in connection with the claimed episodes of blindness. The Veteran's eyes were reexamined in June 2006. Vision was 20/25 in both eyes with correction. Confrontation visual fields were within normal limits. The Veteran was diagnosed with hyperopia and presbyopia. There was also a chorioretinal scar in the right eye that was not visually significant. On July 26, 2007, the Veteran's vision was reexamined. He reported that his vision was blurry and he had trouble driving at night. Physical examination revealed corrected visual acuity to 20/20 in each eye. The Veteran related that he had a blackout of vision in his left eye last year that lasted about two weeks. There were no repeats of this episode. The visual fields, per Goldman test, were constricted to 50 degrees horizontally and 30 degrees vertically in the right eye. It was constricted to 45 degrees horizontally and vertically in the left eye. The examiner noted that these results were inconsistent with the Veteran's examination and not consistent with confrontation visual fields. The examiner also noted that the Veteran had denied tunnel vision as severe as this. The examiner noted that if the measurements were genuine, they were suspicious for an occipital lobe infarct. Refractive error, hyperopia, and presbyopia were diagnosed. The Veteran had salt and pepper peripheral retinal changes, likely consistent with a prior inflammatory versus congenital process and these were not visually significant. There was more chorioretinal scarring inferiorly in the right eye as compared to the left. In August 2007 the Veteran reported that he was told he had tunnel vision and could lose his driver's license. On September 11, 2007 the Veteran's vision was reexamined. Visual fields were improved from July but still restricted between 30 and 40 degrees in all directions on the right and between 30 and 50 degrees in the left eye. An MRI was not significant for occipital lobe infarct or any other significant abnormality. Tangent screen was done at 5 and 10 feet with similar visual fields. This was not the conventional expected finding at these different distances. A treatment note from later in September 2007 indicated that it was intended to repeat the tangent screen, but it is unclear whether this was done. The Veteran's eyes were reexamined in October 2008. At that time, the Veteran complained of blurred vision and poor peripheral vision. Vision in both eyes, corrected, was 20/25. Left eye visual fields were 20 degrees nasally and 25 degrees temporally. Visual field for the right eye was 25 degrees nasally and 25 degrees temporally. The impression was pigmentary retinopathy in both eyes. The differential diagnosis was post-infection retinopathy versus an atypical kind of retinitis pigmentosa or other pigmentary retinal degeneration. The Veteran continued to complain of difficulty seeing, and was examined again in February 2009. Visual fields for the right eye were 51 at 0 degrees, 31 at 45 degrees, 22 at 90 degrees, 38 at 135 degrees, 49 at 180 degrees, 48 at 225 degrees. 55 at 270 degrees, and 66 at 315 degrees. Visual fields for the left eye were 35 at 0 degrees, 31 at 45 degrees, 30 at 90 degrees, 49 at 135 degrees, 62 at 180 degrees, 68 at 225 degrees. 40 at 270 degrees, and 40 at 315 degrees. The Veteran reported blurry vision and poor peripheral vision. Visual acuity with correction was not tested. The examiner reported that the differential diagnosis including post infectious retinopathy versus an atypical form of retinitis pigmentosa or other pigmentary retinal degeneration. In May 2009 the Veteran complained of tunnel vision. It was noted that many tests had been performed and the cause of his tunnel vision could not be found as of yet. The Veteran was reexamined in December 2011. He reported blurry vision and poor peripheral vision. Visual fields for the right eye were 68 at 0 degrees, 48 at 45 degrees, 28 at 90 degrees, 46 at 135 degrees, 49 at 180 degrees,40 at 225 degrees. 50 at 270 degrees, and 63 at 315 degrees. Visual fields for the left eye were 43 at 0 degrees, 48 at 45 degrees, 29 at 90 degrees, 49 at 135 degrees, 70 at 180 degrees, 63 at 225 degrees, 51 at 270 degrees, and 42 at 315 degrees. The examiner opined that the Goldman visual field study conducted in April 2010 was essentially normal. The examiner further noted that the Veteran's physiologic and fluctuating visual fields were suspected in the past to be functional (i.e., not real). The examiner noted that a tangent screen was performed in 2007 to corroborate this. The results of that test indicated a functional (i.e., not real) impairment. Therefore, the Veteran was considered to have normal visual fields. Vision can be rated on best corrected vision or loss of visual fields. In this case, the Veteran's best corrected vision was not compensable to a disabling degree at any time during the appellate term. 38 C.F.R. § 4.84a. Hence, any increased rating would be based upon visual field constriction. For the period up to July 25, 2007, the Veteran's eye disorder was rated noncompensable given that his visual field was not constricted to 60 degrees or less.. From July 26, 2007 to September 10, 2007, he was assigned a 50 percent rating for a visual field constricted to 30 degrees but not to 15 degrees. From September 11, 2007, his constricted visual field was between 31 and 45 degrees, and hence a 30 percent rating was assigned. Higher ratings are available for greater visual constriction. In this particular case, however, a VA examiner reviewed the claims file, including the record of past fluctuating visual fields and the results of a tangent screen visual field. This review showed that the Veteran's visual field constriction was functional, i.e., not real. There was no organic impairment of vision and visual fields were considered normal. While previously other diagnoses were considered as possible etiologies for the Veteran's reported visual problems, the examiner who performed the December 2011 study had the benefit of a retrospective review of the Veteran's visual history as well as the results of a current examination. Additionally, it should be noted that while multiple etiologies for the Veteran's visual loss were considered, his visual loss was never attributed to hypertensive retinal vascular changes. Given the foregoing evidence, the Board finds that the most probative evidence preponderates against assigning a higher staged rating at any time during the appellate term. There simply is no competent evidence of a greater concentric vision loss, or even a compensable loss of visual acuity. This is particularly true given the examiner's finding that any field constriction was of a functional nature. As such, the benefit sought on appeal must be denied. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. . ORDER An initial compensable rating for atherosclerotic hypertensive retinal vascular changes, effective March 9, 2004 through July 25, 2007 is denied. A rating in excess of 50 percent for atherosclerotic hypertensive retinal vascular changes, effective July 26, 2007 to September 10, 2007, is denied. A rating in excess of 30 percent for atherosclerotic hypertensive retinal vascular changes, effective September 11, 2007, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs