Citation Nr: 1304801 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 07-18 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a rating in excess of 30 percent for glaucoma of the right eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1945 to December 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2010, the Veteran testified at a hearing before a Veterans Law Judge at the RO. In August 2010 and July 2012, the Board remanded the case for further action by the originating agency. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Throughout the period on appeal, the Veteran's glaucoma of the right eye has been manifested by blindness with no light perception. There is no anatomical loss of the right eye. The Veteran's left eye corrected visual acuity was no worse than 20/40. CONCLUSION OF LAW The criteria for a disability rating greater than 30 percent for the Veteran's glaucoma of the right eye have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.75, 4.76, 4.76a, 4.80, 4.84a, Diagnostic Codes 6070, 6080 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). With regard to the duty to notify, the Board finds that the Veteran received notice of the elements necessary to substantiate his increased rating claim in May 2004, prior to the initial September 2004 rating decision, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, in August 2006, he was sent a letter informing him of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra. While the August 2006 letter was issued after the initial rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the August 2006 letter was issued, the Veteran's claim was readjudicated in the May 2007 statement of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed his Virtual VA claims file. The Veteran has also been afforded VA examinations in June 2003, September 2006, May 2007, July 2008, May 2009, April 2010, and September 2010, in order adjudicate his increased rating claim. The Board finds these examinations to be adequate in order to evaluate the Veteran's right eye disability as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Moreover, a review of more recent treatment records does not suggest that his eye disability has worsened, nor has the Veteran contended that to be the case. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. The claim was remanded in August 2010 and in July 2012 to afford the Veteran a VA examination and to obtain any outstanding records. The Board notes that all available Goldman Perimeter charts appear to be in the claims file, and there is no indication that charts for the left eye remain outstanding. Moreover, the Veteran was given the chance to submit further records, which he did in 2012, and was afforded many eye examinations. Furthermore, the case was referred for extra-schedular consideration by the Director of Compensation and such opinion was received. Thus, there has been substantial compliance with the remand directives. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings 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. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran contends that his right eye disability warrants an increased rating because he is blind in that eye. The Board notes that 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). 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. § 4.84a (2008). The Veteran's right eye disability is currently rated as 30 percent disabling under Diagnostic Code 6080. The highest rating allowed for a unilateral visual field defect under Diagnostic codes 6080 and 6081 is 30 percent. 38 C.F.R. § 4.84a, DC 6080 (2008). When rating visual field defects, the extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field 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. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 and rounded up represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2008). According to 38 C.F.R. § 4.76a, Table III, the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. The total visual field is 500 degrees. The Board will also rate the Veteran's claim under the criteria contemplating loss of visual acuity. The provisions of 38 C.F.R. § 4.84a, DCs 6061 to 6079 (2008) provide for rating impairment of central visual acuity from noncompensable to 100 percent. Table V provides for the relevant percentage evaluation, which, as explained in 38 C.F.R. § 4.83a, is determined by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. The rating schedule recognizes that a veteran's visual acuity may fall between the specified Snellen's test levels. In applying the rating for impairment of visual acuity, the Board notes that a person not having the ability to read at any one of the scheduled steps or distances, but reading at the next scheduled step or distance, is to be rated as reading at this latter step or distance. Combined ratings for disabilities of the same eye should not exceed the amount for total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. 38 C.F.R. § 4.80 (2008). Turning to the evidence of record, on June 2003 VA examination, the Veteran was assessed to have traumatic glaucoma of the right eye following blunt trauma. Visual acuity of the right eye, corrected, was 20/400. Visual acuity of the left eye, corrected, was 20/25. Goldmann visual field of the right eye was 5 degrees horizontally and a less than 5 degrees vertical island. That was less than the previous field of vision. Slit lamp examination showed a superior bleb of the conjunctiva and atrophy of the right iris. The diagnosis was glaucoma and early cataract, bilaterally. VA treatment records reflect that in March 2005, the right eye had no visible field on Goldmann visual field test. The optic nerve was virtually completely cupped. In April 2005, his ophthalmologist stated that the Veteran had no detectable peripheral vision and a very small amount of central vision in the right eye. In June 2006, the Veteran's private physician stated that the Veteran had 20/30 vision out of his left eye and could not see out of his right eye. His loss of vision interfered with his ability to drive, read, and his mobility. A September 2006 VA record reflects 20/25 vision in the left eye. In the right eye, the Veteran could not see projection of light. The assessment was traumatic glaucoma status post trabeculectomy times two. The optic nerve was almost completely cupped. He had a right eye cataract with limited visual potential. In April 2007, it was noted that his visual acuity dropped from 20/200 in 2004 to no light perception with an intraocular pressure of 16-19. Now he had intraocular pressure of 2 likely secondary to overinfiltration. On May 2007 VA examination, visual acuity of the right eye, corrected, was none because there was no light perception. Visual acuity of the left eye, corrected, was 20/20. Visual field could not be assessed on the right eye. The pupil had no reaction due to atrophy. Further physical examination resulted in the assessment that the Veteran was blind in the right eye, which was worse than previous examination when he had a small visual field. He had primary open angle glaucoma in the left eye. VA treatment records reflect that in June 2007, corrected visual acuity in the left eye was 20/25 with no light perception in the right eye. On July 2008 VA examination, corrected visual acuity of the right eye was none due to no light perception, and corrected visual acuity of the left eye was 20/25. Visual field on the left was full. Examination resulted in the diagnosis of blind on the right, traumatic glaucoma on the right, and primary open angle glaucoma on the left. In October 2008, the Veteran's private physician stated that the Veteran was attempting to get his driver's license. Vision in his left eye was 20/30 and was stable. VA treatment records reflect that in March 2009, visual acuity in the left eye was 20/25. Intraocular pressure was 4 in the right eye and 14 in the left eye. On May 2009 VA examination, visual acuity, corrected, in the right eye was none due to no light perception. Visual acuity in the left eye, corrected, was 20/25. There was no visual field ability in the right eye, in the left eye confrontation field was full. He had a mature cataract on the right and a mild cataract on the left. VA treatment records reflect that in May 2009, visual acuity in the left eye was 20/30. In October 2009, visual acuity in the left eye was 20/30. On April 2010 VA examination, the Veteran had corrected visual acuity in the left eye of 20/40 and no light perception in the right eye. He had significant stromal edema in the right eye. At his May 2010 hearing before the Board, the Veteran reported that he used to get pain in his eye that made him feel incapacitated at times but he did not feel much pain at present. Once in a while there was a sharp pain that would last for thirty minutes to an hour and he would sit in a chair and rest. He would also use drops for relief. On September 2010 VA examination, the Veteran reported having pain in his right eye for two months. The right eye was very red. However, he had started taking a variety of medications to treat the pain and reported that it had ceased. Visual acuity of the right eye was none due to no light perception. Visual acuity of the left eye, corrected, was 20/30. Reaction of the pupil of the left eye was normal. Goldmann visual field chart showed full but mild contraction of the left eye. Peripheral field vision was 30 degrees or greater in all directions. The examiner noted that such was most likely due to his pupil not dilating well and the presence of a moderate cataract. The intraocular pressure in the left eye had not been well-controlled since 2010. A November 2011 private treatment record reflects that the Veteran had corrected visual acuity in the left eye of 20/40 and no visual acuity in the right eye due to no light perception. In this case, a rating higher than 30 percent due to visual field defect is not available. The Board has considered the applicability of 38 C.F.R. § 3.383(a), which permits evaluation of both eyes for compensation purposes when blindness in both the service-connected and nonservice-connected eyes exists; however, the Veteran does not have blindness in the left eye, and has not been blind in the left eye at any time during the rating appeal. Thus, a higher rating under DC 6080, or any other code related to a visual field defect, is not available. The Board finds that a rating under DCs 6000 through 6009 (uveitis, keratitis, scleritis, iritis, cyclitis, choroiditis, retinitis, recent intra-ocular hemorrhage, and detachment of the retina) is not warranted because the Veteran has not been diagnosed with any of those diseases. Even if the Veteran was rated under DC 6003 for iritis, there is no indication of pain, rest requirements, or episodic incapacity to suggest a rating higher than 30 percent. Rather, the Veteran has stated only that he experiences some pain that resolves within an hour for which he rests but does not incapacitate him. Diagnostic Codes 6010 to 6035 provide ratings for other eye diseases, including glaucoma. DC 6012 considers congestive or inflammatory glaucoma. Under that code, a 100 percent rating is warranted for frequent attacks of considerable duration during continuance of actual total disability. However, the Veteran has not been diagnosed with congestive or inflammatory glaucoma and his glaucoma has not resulted in frequent attacks of considerable duration. Specifically, the Veteran's glaucoma has not been found to be incapacitating or to interfere with activities of daily living on a prolonged basis. DC 6013 considers simple, primary, noncongestive glaucoma. Under that code, glaucoma is to be evaluated under either impairment of visual acuity or field loss. A minimum rating of 10 percent is assigned. 38 C.F.R. § 4.84a, Code 6013 (2008). However, the Veteran has already been assigned a rating higher than 10 percent for his glaucoma and the Board finds no higher rating available based upon visual acuity and field loss. To that extent, the Board finds that throughout the appeal period, the Veteran's left eye visual acuity was always 20/40 or better. Thus, under DC 6070, which contemplates impairment of central visual acuity when there is no more than light perception in the one eye, a rating higher than 30 percent is not warranted. Accordingly, as there has been no anatomical loss of the right eye, a higher rating for impaired visual acuity is not allowed. III. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, the Veteran has reported that he worked for many years prior to retirement and has not stated that his right eye disability prevents employment. Moreover, insofar as the Veteran's right eye disability interferes with his employability, the Board finds that such is contemplated by his assigned evaluations under the rating schedule. See 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. In addition, the Board observes that the Veteran does not meet the threshold schedular criteria for TDIU. Therefore, as the Board has determined that a claim for TDIU has not been raised by the Veteran or the evidence of record, higher ratings for the Veteran's right eye disability may only be awarded on an extra-schedular basis. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right eye disability with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms that are not addressed by the rating schedule. Moreover, in February 2012, the case was referred to the Director of Compensation Service for extra-schedular consideration. The director reviewed the evidence, including the Veteran's visual acuity and field defects, but determined that there was no indication of marked interference of employment or frequent period of hospitalization as to warrant an extra-schedular rating. In so finding, the director noted that there were higher ratings available to the Veteran but that he did not meet that criteria due to the vision in his left eye. Also, the Veteran stated at this hearing before the Board that his right eye caused some pain that resolved in 30 minutes, but he did not state that it was incapacitating, and the treatment records do not otherwise support such a finding. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's right eye disability may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that a rating higher than 30 percent was not warranted at any time during the pendency of the appeal. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 30 percent for a right eye disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs