Citation Nr: 1308339 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 05-35 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for the postoperative residuals of right ophthalmic artery aneurysm. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that granted the Veteran's claim of entitlement to service connection for right ophthalmic artery aneurysm and assigned the same an initial 10 percent disability rating, effective March 23, 2000. In October 2008, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. In December 2008, and again in September 2011, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. The issue of entitlement to service connection for aphasia as secondary to service-connected residuals of right ophthalmic artery aneurysm has been raised by the record. This issue was referred to the Agency of Original Jurisdiction (AOJ) at the time of the Board's December 2008 and September 2011 remands; however, there is no indication that the AOJ has adjudicated the issue. The Board does not have jurisdiction over the issue, and it is again referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's postoperative residuals of right ophthalmic artery aneurysm are not manifested by corrected vision worse than 20/40 in the right eye; there is no loss of field of vision or incapacitating episodes. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for the postoperative residuals of right ophthalmic artery aneurysm have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.383, 4.3, 4.7, 4.79, Diagnostic Codes 6007, 6066 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases where service connection has been granted and initial disability ratings and effective dates have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. See April 2000, July 2005, and March 2006 VA Letters. The record reflects that the appellant was provided a meaningful opportunity to participate effectively in the processing of her claim. The appellant was notified that her claim for service connection for postoperative residuals of right ophthalmic artery aneurysm was awarded with an effective date of March 23, 2000, the date her claim was received, and an initial disability rating was assigned. She was provided notice how to appeal that decision, and she did so. She was provided a statement of the case that advised her of the applicable law and criteria required for a higher rating. Additionally, VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran multiple VA examinations, and afforded the Veteran the opportunity to give testimony before the Board. The examinations are adequate for evaluation purposes. The Veteran's records were available for review, she was examined, and pertinent clinical findings were recorded. Additionally, at the hearing in 2008, the Veteran described symptoms associated with her disability and noted treatment that she had received. While the Board did not explicitly note the elements of the claim that were lacking in the appeal or expressly state that she could submit additional evidence, the Veteran had actual knowledge of this information. Further, in subsequent remands, the Board attempted to help the Veteran submit such evidence. As noted below, the Veteran was not responsive. Most importantly, neither the Veteran nor her representative has asserted any prejudice in this regard. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran offered testimony at her October 15, 2008 Board hearing as to her private treatment with Dr. S. The Veteran's representative, at the time of the Board hearing, asserted that the Veteran was presently submitting a VA Form 21-4142, Authorization and Consent to Release Information to VA, in order to obtain such private treatment records. The Board in its December 2008 remand directed the AMC (Appeals Management Center)/RO to obtain the Veteran's private treatment records from Dr. S. Subsequent to the Board's December 2008 remand, the Remand and Rating Development Team issued the Veteran a letter, dated in January 2009, requesting that she complete a VA Form 21-4142 for Dr. S. The Remand and Rating Development Team issued another letter, dated in October 2009, informing the Veteran that no response from the January 2009 letter had been received and requesting that she complete a VA Form 21-4142 for Dr. S. At the time of the AMC's March 2011 Supplemental Statement of the Case, it noted that they had not received a VA Form 21-4142 for Dr. S. subsequent to the January 2009 and October 2009 letters requesting such. The Board's September 2011 remand noted that it was clear from the record that the AMC/Remand and Rating Development Team attempted to secure a VA Form 21-4142 for Dr. S.'s private treatment records. It was also clear that the Veteran did not respond to the January 2009 or October 2009 requests for the same. The Board noted that it remained that a VA Form 21-4142 for Dr. S. was associated with the claims file as of October 15, 2008, the day of the Veteran's Board hearing. In order to afford the Veteran every opportunity available, the Board considered a scenario wherein the Veteran did not respond to the January 2009 and October 2009 letters because she had already submitted the requested form. Additional development was requested again. In the September 2011 remand, the Board noted that the October 15, 2008 VA Form 21-4142 currently associated with the claims file is missing its second page. The second page of the form is significant, as it contains the Veteran's signature, thus allowing VA to secure the identified private treatment records. Pursuant to the Board's September 2011 remand, the RO informed the Veteran in a June 2012 letter that her VA Form 21-4142 was incomplete and not sufficient to secure the private treatment records she identified. She was requested to complete another Form 21-4142 and return it in order that the Board could request the private treatment records from Dr. S. The Veteran did not respond to the letter. The "duty to assist is not always a one-way street. If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). All other known and available records relevant to the issue on appeal have been obtained and associated with the claims file, and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 38 C.F.R. § 4.14. In an appeal of an initial rating, consideration must be given to staged ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to staged ratings. The Veteran's service-connected residuals of right ophthalmic artery aneurysm have been evaluated as intraocular hemorrhage (designated at Diagnostic Code 6007) and are rated as 10 percent disabling pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. 38 C.F.R. § 4.79, Diagnostic Code 6007 (2012). Disability ratings for several eye disorders, including intraocular hemorrhage, are based on either visual impairment or incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79, Diagnostic Code 6007, General Rating Formula for Diagnostic Codes 6000 through 6009. Under the General Rating Formula, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009, Note. Disability ratings for impaired vision generally are based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (2012). With only one service-connected eye, the visual impairment of the non-service-connected eye will be considered to be 20/40 for purposes of evaluating the service-connected visual disability, subject to the provisions of the paired organ rule under 38 C.F.R. § 3.383(a) (2012). Diagnostic Code 6066 provides for a 10 percent evaluation when there is 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye, 20/70 vision in one eye with 20/40 vision in the other eye, or 20/100 vision in one eye with 20/40 vision in the other eye. A 20 percent evaluation is warranted only when there is 20/70 vision in one eye with 20/50 vision in the other eye, 20/100 vision in one eye with 20/50 vision in the other eye, 20/200 vision in one eye with 20/40 vision in the other eye, or 15/200 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. Impairment of visual fields is rated under DCs 6080 and 6081. Under DC 6080, a compensable rating is assigned for loss of half of the visual field or contraction of the visual field. Under DC 6081, a minimum 10 percent rating is assigned for a scotoma affecting at least one-quarter of the visual field or of any size if centrally located, unless a higher rating may be assigned based on visual impairment. When all the evidence is assembled, the determination must be made as to 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). On VA examination in April 2003, the Veteran reported not seeing lines of type clearly when reading, and seeing halos around objects. Uncorrected visual acuity was noted as finger count five-feet in each eye. Corrected visual acuity was 20/20 in each eye. Examination showed pupils were equal, round, and reactive light. The lids and conjunctiva were normal. The cornea was clear. The anterior chamber was deep and quiet. Iris was normal and lens showed trace yellowing. Dilated fundus examination showed normal vessels, flat and even macula, and no holes, tears, or apparent pathology of the periphery. Visual fields testing was unreliable as the Veteran had trouble with eye hand coordination and poor responses with many fixation losses. On VA examination in September 2005, the Veteran reported blurred vision of both eyes, periodic double vision, and difficulty with word/object recognition. She reported that she could see print clearly but sometimes had trouble comprehending what she had read. Uncorrected distance visual acuity was 20/600 in each eye. Corrected distance visual acuity was 20/25 in the right eye and 20/20 in the left eye. Uncorrected near visual acuity was 20/400 in each eye. Corrected near visual acuity was 20/25 in the right eye and 20/20 in the left eye. Extraocular muscles were within normal limits. Diplopia was not present. Slit lamp evaluation was within normal limits. Visual fields test was not indicated. The examiner stated that the examination showed no ocular residual sequelae of ophthalmic aneurysm. On VA examination in October 2007, the Veteran reported that her eyes were good but that her "brain can't see." She reported aphasia from her prior surgery. Corrected distance visual acuity was 20/20 in each eye. There was no pain and no diplopia. Pupils were round, equal, and reactive to light. Extraocular muscles were full. Confrontation visual fields were full. On VA examination in May 2009, the Veteran reported complaints of tired eyes, impaired night vision, and halos. There were no periods of incapacitation due to eye disease. The examiner noted that there was not more than four diopters of spherical correction between the eyes. Uncorrected distance visual acuity was count fingers in each eye. Corrected distance visual acuity was 20/25 in each eye. Uncorrected near visual acuity was 20/200 in the right eye and 20/100 in the left eye. Corrected near visual acuity was 20/40 in each eye. Diplopia was not present, and slit lamp examination was normal. There was no visual field defect. Tonometry showed 18 mm hg pressure in each eye. The Veteran was noted to be employed full-time at a food bank. The examiner noted that the Veteran needed to check and recheck her work prior to distributing it to colleagues due to her vision complaints and problems with her short term memory. On VA examination in December 2010, the Veteran reported halos and blurry vision. There was no history of incapacitating periods due to eye disease. There was no diplopia present. Fundoscopic examination findings were normal and there was no visual field defect. There was no difference equal to two or more scheduled steps or lines of visual acuity between near and distance corrected vision for either eye, with the near vision being worse. There was not more than three diopters of spherical correction between the eyes. Uncorrected distance visual acuity was 20/800 in each eye. Corrected distance visual acuity was 20/20 in each eye. Uncorrected near visual acuity was 20/100 in each eye. Corrected near visual acuity was 20/20 in each eye. Examination showed early nuclear sclerosis cataracts in both eyes. The Veteran had not missed any time from her full-time employment in the past year due to eye problems. There were no significant effects on her occupation due to residuals of right ophthalmic artery aneurysm. In an addendum to the examination report, completed in January 2011, the examiner stated that the Veteran's corrected vision was 20/20 in both eyes, she had no diplopia, and had normal visual fields testing; thus her complaints of blurry vision, haloes, and diplopia were less likely as not caused by or a result of right ophthalmic artery aneurysm. After a careful review of all pertinent evidence in light of the above-noted criteria, the Board has determined that the Veteran's residuals of right ophthalmic artery aneurysm do not more nearly approximate the criteria for a higher rating. Entitlement to a higher rating based on periods of incapacitation under the General Rating Formula for Diagnostic Codes 6000 through 6009 is not warranted, as the May 2009 and December 2010 examination reports specifically noted that there were no periods of incapacitation due to eye problems, and that the Veteran had not missed time from work for such problems. The Veteran also does not meet the scheduler criteria for a compensable rating based on visual impairment, as the VA examination findings have shown right eye corrected vision as no worse than 20/40 (and generally 20/20), and the December 2010 VA examiner did not relate any of her current visual impairment symptomatology to her service-connected residuals of right ophthalmic artery aneurysm. The field of vision testing on examinations have disclosed no impairment in her visual fields. The Veteran also submitted written statements and hearing testimony discussing the severity of her service-connected right eye symptomatology. At times, she has indicated that she has visual distortion, a limited vision, and diplopia. In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. At 57. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report her increased right eye symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. However, the clinical evidence of record does not indicate that the assignment of any increased evaluation is warranted. VA examinations dated from 2003 through 2010 generally revealed corrected visual acuity to 20/20 without diplopia, impaired visual fields, or incapacitating episodes. As the Veteran's statements are inconsistent with the objective evidence of record, the Board finds her assertions of increased right eye symptoms to lack credibility as well as probative weight. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Thus, evidence of increased right eye symptomatology has not been established, either through medical or lay evidence, during the appeal period. Moreover, to the extent her visual acuity may have worsened, the most recent VA examiner noted the presence of non-service-connected bilateral cataracts. For all the foregoing reasons, the Veteran's claim for entitlement to an increased initial rating for postoperative residuals of right ophthalmic artery aneurysm must be denied on a schedular basis. The Board has considered staged ratings, but concludes that they are not warranted. See Fenderson, supra. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, claiming to be unemployable related to her service-connected disability. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Finally, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular scheduler standards." Id. If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. During the pendency of the appeal, objective findings remain essentially normal. See VA examinations dated from 2008 to 2010. Thus, her disability picture is contemplated by the rating schedule, and the assigned scheduler evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. ORDER An initial evaluation in excess of 10 percent for the postoperative residuals of right ophthalmic artery aneurysm is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs