Citation Nr: 1306226 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 07-20 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to a rating in excess of 10 percent for glaucoma of the left eye, with cataract, based on central visual acuity. 2. Entitlement to a rating in excess of 10 percent for glaucoma of the left eye, with cataract, based on visual field loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) from a September 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran provided testimony at an August 2009 hearing before a Veterans Law Judge who is no longer employed by the Board. In May 2012 the Board wrote to the Veteran informing him that he could have another hearing if he wished. The Veteran did not respond and it is therefore found that the Veteran does not want another hearing. A transcript of the August 2009 hearing is of record. In May 2011 the Board remanded the Veteran's claim for entitlement to a rating in excess of 10 percent for glaucoma of the left eye with cataract. By rating action in April 2012 the RO granted the Veteran a separate 10 percent rating for visual field loss of the left eye as secondary to the service-connected glaucoma of the left eye, with cataract. The RO awarded the 10 percent rating, effective from March 1, 2006. Consequently, the Veteran's left eye claim is currently divided into two separate increased rating claims, one based on loss of central visual acuity and one based on loss of visual field. The issues are addressed as such above for the sake of clarity. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claims. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board is unable to adjudicate the Veteran's claim for an increased rating for glaucoma of the left eye, with cataract, due to apparent clear and unmistakable error (CUE) in an April 3, 2012 rating decision. The Veteran filed his claim for increased evaluation in March 2006. While that claim has been pending, the VA Rating Schedule for evaluating eye disabilities was amended. See 73 Fed. Reg. 66543 (Nov. 10, 2008). However, the amended criteria apply only to claims filed on or after December 10, 2008. As the Veteran's claim in the current case was filed before that date, the amended criteria are not applicable. This is important because the amended regulations permit simultaneous evaluation for impaired visual acuity and loss of visual field, while the older, applicable criteria do not. See 38 C.F.R. § 4.75 (2012); 38 C.F.R. §§ 4.75-4.84a (1996). The RO granted service connection for left eye glaucoma in a February 1996 rating decision. The RO evaluated the Veteran's left eye disability as 10 percent disabling under 38 C.F.R. § 4.84a, Diagnostic Code 6013 (1995), which provided that glaucoma was to be rated based on either impairment of visual acuity OR field loss, with a minimum 10 percent evaluation assigned for the mere presence of the condition. The 10 percent evaluation assigned represented the Schedular minimum, as the RO found no compensable disability based on loss of visual acuity or field. In a January 2003 rating decision, the RO declined to assign an evaluation in excess of 10 percent for glaucoma. However, the discussion in the decision makes clear that the assigned evaluation was no longer merely a Schedular minimum; it was assigned because documented visual field loss was established at a compensable level under 38 C.F.R. § 4.84a, Code 6080 (2002). The underlying diagnosis and service connected disability did not change, though the manifestation of such did advance. Unfortunately, the RO incorrectly coded the service connected disability in the January 2003 decision as being solely related to Code 6080. The disability should have been coded under Diagnostic Code 6013-6080, signaling through hyphenation that the diagnosed an service-connected disease (glaucoma) was being rated based on a residual (loss of visual field). 38 C.F.R. § 4.27. The Coding error was carried forward in the September 2006 decision on appeal here, as well as in a subsequent May 2009 decision, which granted service connection for a left eye cataract, rated together with the glaucoma. Discussion in March 2006 directly addressed the possibility of a separate evaluations for visual acuity and field loss, but properly rejected such as prohibited by the applicable Schedular criteria. In May 2009, the same considerations were weighed, and evaluation for loss of field of vision was continued. Unfortunately, following the Board's December 2009 remand for examination, the AMC failed to properly apply the governing regulations and criteria. First, the AMC undertook to assign evaluations for both loss of visual acuity and loss of field of vision in the left eye, as is specifically prohibited by the criteria to be applied. 38 C.F.R. § 4.84a, Code 6013 (2008). Second, even if ratings for both manifestations were permitted in this case, the AMC very clearly assigned a new 10 percent evaluation for the exact same manifestation, field loss, which has been compensated at 10 percent since at least 2003. A clearer case of prohibited pyramiding cannot be imagined. 38 C.F.R. § 4.14. The misapplication of the law constitutes CUE on its face, which must be corrected by the AMC. As the AMC has construed the issues in April 2012, the Veteran simply has no legal entitlement to all the benefits it awarded. The Board cannot begin to address the properly appealed evaluation issue or issues until they have been properly framed and identified. Remand is required for such. Moreover, in May 2011 the Board remanded the Veteran's claim in order that the VA records of Goldmann field testing performed in May 2006, October 2007, and November 2008 could be obtained, and in order to secure a medical opinion regarding the Veteran's visual field loss. However not all of the Goldmann charts were obtained and the Veteran was not informed as to which Goldmann charts could be obtained and which could not be obtained. The Veteran must be so informed. See 38 C.F.R. § 3.159(e). The May 2011 Board remand specified that an opinion reconciling May 2006, October 2007, November 2008, and April 2010 VA examination findings, as well as January 2009 private evaluation findings. The requested opinion was not obtained. Accordingly, the Board finds that there was not substantial compliance with the May 2011 remand instructions and the appeal for an increased rating for left eye disability based on visual field loss, must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO must take corrective action to apply the correct Schedular criteria and regulations, in effect prior to October 2008. This includes discussion of the propriety of dual evaluations for multiple manifestations of the left eye disability, to include consideration of CUE as discussed above. 2. Associate with the Veteran's claims file the left eye Goldmann visual field charts available for each of the VA ophthalmological examinations the Veteran has been provided since February 2006, (including May 2006, October 2007, November 2008, April 2010, and May 2011). For any left eye Goldmann charts that are unavailable, the Veteran should be informed of such unavailability and informed of the efforts VA made to obtain the records. 3. Send the Veteran's claims file to an appropriate specialist for review. Based on a review of the entire claims file, provide an opinion reconciling the following opinions: (a) The April 2010 VA examination findings that the Veteran's visual field test is essentially normal; (b) The January 2009 private evaluation findings of increased field loss since the 2008 findings; (c) The November 2008 VA examination findings of essential normal visual field testing of the left eye; (d) The October 2007 VA examination findings of a left eye abnormality noted upon visual field testing; and (e) The May 2006 VA examination findings of a field cut in the left eye noted upon visual field testing. The reviewer is requested to provide a complete rationale for all opinions expressed. 4. Thereafter readjudicate the Veteran's claim for an increased rating for glaucoma of the left eye, with cataract. The Veteran and his representative should be furnished with a supplemental statement of the case which includes calculations of the average concentric contraction of the visual field of the Veteran's left eye for each Goldmann visual field chart that is available from each of the Veteran's ophthalmological examinations. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).