Citation Nr: 1313265 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-02 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial disability rating higher than 30 percent for optic atrophy of the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION 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). The Veteran, who is the appellant, served on active duty from January 1943 to October 1945, including service in World War II. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which granted service connection for optic atrophy of the left eye and assigned a disability rating of 30 percent. The claim is now in the jurisdiction of the Indianapolis, Indiana RO. FINDING OF FACT Throughout the appeals period, the Veteran's optic atrophy of the left has been manifested by loss of vision (light perception only) in the left eye with visual acuity of 20/40 or better in the right eye. CONCLUSION OF LAW The criteria for an initial disability rating higher than 30 percent for optic atrophy of the left eye have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.76, 4.79, Diagnostic Code 6064 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim for increased disability rating of the optic atrophy of the left eye arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran has been provided with VA vision examinations in September 2008 and January 2013. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran's service-connected left eye disability has been evaluated on the basis of impaired visual acuity. The severity of visual acuity loss is determined by applying the criteria set forth in the Ratings for Central Visual Acuity Impairment. 38 C.F.R. § 4.79. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.79, Diagnostic Codes 6061 to 6066. A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses or contacts. 38 C.F.R. § 4.76. Where there is a loss of vision in one eye to the point that only light perception is possible, Diagnostic Code 6064 assigns ratings based on the visual acuity in the other eye. In that instance, visual acuity of 20/40 or better in the good eye is rated as 30 percent disabling, with vision of 20/50 rated as 40 percent disabling and 20/70 as 50 percent disabling. 38 C.F.R. § 4.79. Where there has been an anatomical loss of one eye, Diagnostic Code 6063 assigns disability ratings based on the visual acuity of the remaining eye. In those circumstances, visual acuity of 20/40 or better in the better eye merits a rating of 40 percent and visual acuity of 20/50 in the better eye is assigned a rating of 50 percent. 38 C.F.R. § 4.79. Facts and Analysis A July 2008 optometry consult revealed best corrected vision of 20/25 in the right eye and 20/40 in the left. The Veteran complained of vision loss in the left eye secondary to residual shrapnel incurred in service. On VA examination in September 2008, the Veteran reported witnessing an explosion during World War II which resulted in embedded shrapnel in his face. He experienced steadily decreasing visual acuity in his left eye since the event. His visual acuity was measured as 20/30 in the right eye and 20/80 in the left eye, with pinhole vision of 20/60. His best corrected visual acuity was 20/20 in the right eye and enabled him to count fingers with the left eye. Visual fields were full in both eyes. The examiner diagnosed optic atrophy in the left eye. In September 2009, the Veteran submitted a written statement, indicating that he recently had lost all vision in his left eye. Treatment records show that this change in his vision occurred in August 2009 (though it appears his vision was lost prior to the August 2009 treatment, then returned temporarily). At the August 2009 consult, he still had corrected 20/20 vision in his right eye. On January 2013 VA examination, the Veteran's diagnosis of optic atrophy in the left eye, as a result of shrapnel exposure in July 1944, was noted. Testing showed uncorrected distance vision in the right eye as 20/40 or better and uncorrected near vision as 20/70. Corrected distance and near vision in the right eye was 20/40 or better. The visual acuity of the left eye was limited to light perception only; he was unable to recognize test letters at one foot or closer and unable to count fingers at three feet. Goldmann's testing showed a loss of visual field in the left eye but normal visual field in the right eye. Applying the rating criteria to the foregoing evidence, the Board finds that an evaluation greater than 30 percent is not warranted, as there is no evidence of corrected distance visual acuity of 20/50 in the right eye. See 38 C.F.R. § 4.79, Diagnostic Code 6064. In making this determination, the Board observes that the Veteran's best corrected distance vision in the right eye has been no worse than 20/40 throughout the appeal period. See 38 C.F.R. § 4.79. While the Veteran's left eye is limited to light perception only, there has been no anatomical loss of the eye, and a higher disability rating under Diagnostic Code 6063 is not warranted. As such, the Veteran's disability picture is consistent with the currently assigned 30 percent disability rating. The Board notes that the Veteran has specifically asserted that he should be assigned a 50 percent disability level for his left eye disability and should also be awarded his Purple Heart. With respect to the Veteran's Purple Heart citation, that is the responsibility of the Department of Defense and is not within the power or jurisdiction of VA to either grant or deny. With respect to the assertion of entitlement to a 50 percent disability, the Veteran's argument is presumably based on the fact that he has lost what he perceives as half of his vision. While the Board appreciates his perspective on this matter, the disability rating criteria as presently constituted allow for no more than a 30 percent disability rating where there is light perception only in one eye, but vision of 20/40 or better in the other eye. 38 C.F.R. § 4.79. Accordingly, a higher disability rating is not for application here. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology with respect to his loss of vision in his left eye but visual acuity of 20/40 or better in his right eye. In addition, the rating criteria provide for higher ratings for more severe symptoms. As the disability picture presented is completely consistent with the one set forth in the rating schedule, it is clear that the assigned schedular rating is adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial disability rating in excess of 30 percent for optic atrophy of the left eye is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs