Citation Nr: 1317031 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 08-34 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable evaluation for left eye exotropia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1950 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2008, the Veteran testified at a personal hearing before a Decision Review Officer (DRO). A copy of the hearing transcript is associated with the claims file. In a November 2010 decision, the Board, in pertinent part, denied entitlement to a compensable rating for the Veteran's service-connected left eye exotropia. The Veteran appealed the Board's November 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court set aside the Board's November 2010 decision with regard to the issue involving the Veteran's service-connected left eye exotropia and remanded the matter for further adjudication consistent with the decision. In November 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC to afford the Veteran a VA examination of the eyes. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). A full discussion regarding the RO's compliance with the November 2012 Board Remand is included in the Duties to Notify and Assist section below. The Veteran submitted additional argument with attachments after the case was certified to the Board that was not considered in the most recent April 2013 supplemental statement of the case. The Veteran did not submit a waiver of initial RO consideration of the evidence attached to the argument; however, upon review of this particular evidence, the Board finds no reason to seek a waiver of consideration of this evidence by the RO or to remand the matter for RO consideration of the evidence as the evidence attached to the argument is duplicative of evidence already of record. 38 U.S.C.A. § 20.1304 (2012). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. 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 issue of an increased evaluation for left eye exotropia on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDING OF FACT For the entire appeal period, the Veteran's service-connected left eye exotropia is manifested by a corrected visual acuity of no worse than 20/30; it is also manifested by impaired depth perception and the inability to use stereoscopic vision. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for left eye exotropia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.84, Diagnostic Codes 6079, 6099 (effective before December 10, 2008). 2. The requirements for referral to the Director of Compensation and Pension for consideration of an extraschedular rating for left eye exotropia have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 3.321 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim for service connection for an eye condition prior to initial adjudication. A March 2001 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Concerning the appeals for higher initial ratings, because they are appeals that arise from the Veteran's disagreement with the initial evaluation following the grant of service connection for left eye exotropia, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service, VA and private treatment records have been secured. The RO arranged for VA examinations in November 2006, August 2008, and December 2012 (pursuant to the November 2012 Board Remand). The Board acknowledges the Veteran's assertion that the December 2012 VA examination is inadequate based on the bias of the VA examiner; however, the Board finds that these examinations, taken together and including the December 2012 VA examination, are found to be adequate for rating purposes of the issue. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes); see also Stegall, 11 Vet. App. at 268. Also, in this regard, the Board found the January 2009 VA examination to be inadequate, following the Court's March 2012 Memorandum Decision, as it did not include field of vision testing pursuant to the Veteran's October 2008 lay statements; however, the November 2006 and August 2008 VA examinations remain adequate and are considered in the adjudication of the issue below. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In rendering a decision on appeal the Board must also 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Left Eye Exotropia Rating Analysis The Veteran asserts that a compensable rating is warranted for his service-connected left eye exotropia, specifically a 40 percent disability rating. During the course of this appeal, VA revised the criteria for rating eye disabilities, effective December 10, 2008. 73 Fed. Reg. 66,543 (2008) (codified at 38 C.F.R. §§ 4.75-4.79). However, because the Veteran filed his claim prior to December 10, 2008, the appeal will be considered under the old criteria. 73 Fed. Reg. 66543 (Nov. 10, 2008). The Veteran is currently rated under Diagnostic Code 6099-6079 for his service-connected left eye exotropia. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 6099 refers to an unlisted disability of the eye. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079. A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. See 38 C.F.R. § 4.75 (2008). The percentage evaluation will be found from Table V 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. 38 C.F.R. § 4.83a, Table V (2008). 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. See 38 C.F.R. § 4.80 (2008). In this respect, a noncompensable rating is warranted for vision in both eyes that is correctable to 20/40. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/50 and vision in the other eye is correctable to 20/40; (2) when vision in both eyes is correctable to 20/50; (3) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, DCs 6078, 6079 (2008). The weight of the competent evidence shows that the Veteran is not blind in his non-service-connected right eye, nor does he so contend. In fact, the VA examinations of the eyes conducted (in November 2006, August 2008, and December 2012) reveal that throughout the period on appeal, visual acuity in the Veteran's right eye was no worse than 20/40. As noted above, since he is not blind in this eye, his visual acuity in the right eye must be considered to be normal (which, in terms of central visual acuity means 20/40 vision as shown at 38 C.F.R. § 4.84a, Table V) for rating purposes. See 38 C.F.R. § 3.383(a)(1). Based upon the evidence of record, the Board finds a compensable rating is not warranted for the Veteran's service-connected left eye disability on a schedular basis. As previously noted, in order to obtain a compensable evaluation when the Veteran is neither blind nor has loss of use of one eye, the central visual acuity of the service-connected left eye must be 20/50 or worse to warrant a compensable evaluation. 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079. Evidence against such a finding includes an October 2003 visit to a VA ophthalmology clinic where the Veteran's left eye vision with correction was reported as being 20/25+1. At a November 2006 VA examination, the VA examiner noted that the Veteran's left eye far vision with correction was 20/25. In August 2008, the Veteran returned to his local VA ophthalmology clinic, and his left eye vision with correction was 20/30. In August 2008, the Veteran was afforded a second VA examination, and the VA examiner reported the Veteran's best far vision with correction as 20/30-2 and his best near vision with correction as 20/30-1. Pursuant to the November 2012 Board Remand, the Veteran underwent a VA examination of the eyes in December 2012. At that time, the Veteran's far vision with correction was 20/40 or better and his near vision with correction was also 20/40 or better. The December 2012 VA examiner noted that the Veteran's individual visual acuity was "quite good," and he should not be considered legally blind. As such, the Board finds that at no time throughout the pendency of the appeal, has the Veteran's left eye vision with correction been 20/50 to warrant a compensable rating. Thus, entitlement to a compensable rating for the Veteran's service-connected left eye exotropia is not warranted. There is no contrary evidence of record suggesting that the Veteran's symptomatology associated with his service-connected left eye disability meets the schedular criteria for a higher rating. With respect to the Veteran's claim for a higher evaluation of his left eye exotropia as manifested objectively, the Board must consider the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath, 1 Vet. App. at 595. In this regard, the December 2012 VA examiner indicated that the Veteran did have cataracts, insignificant dermatochalsis, pseudophakia, and visual field impairment; however, the examiner did not attribute these conditions to the service-connected left eye exotropia. Specifically, the examiner concluded that the Veteran's most significant problem is glaucoma, which is the cause of his visual field impairment. Indeed, the Veteran is not service-connected for cataracts or glaucoma as service connection for those disabilities was previously denied by the Board in a July 2005 decision. However, the Board has also considered whether the Veteran's subjective complaints of the inability to focus with the right eye and impaired depth perception. In this regard, an analysis of extraschedular consideration for the Veteran's left eye exotropia is discussed in the Remand portion of this decision. Further, the Board has considered the Veteran's general statements that his disability is worse than currently rated. In this case, the Veteran is competent to report symptoms, such as blurry vision, inability to focus both eyes together, and impaired depth perception, because this requires only personal knowledge as it comes to him through his senses. Layno at 470. He is not, however, competent to identify a specific level of disability of the disorder according to the appropriate diagnostic codes, specifically, whether he has left eye central visual acuity of 20/50 (required for a higher evaluation). This type of finding is not readily undertaken by a lay person such as the Veteran. Therefore, with respect to objective results of visual acuity, the medical findings provided in the VA medical examination reports of record have accorded probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). After careful review of the available diagnostic codes and all the evidence of record, lay and medical, the Board does not find evidence that the rating assigned for the Veteran's left eye exotropia should be increased under the schedular criteria for any other separate period based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation on a schedular basis during any time within the period on appeal. As such, an initial compensable evaluation for left eye exotropia is not warranted. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 509. Hence, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). As noted above, an analysis of extraschedular consideration for the Veteran's left eye exotropia is discussed in the Remand section below. ORDER An initial compensable evaluation for left eye exotropia is denied. REMAND An extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran'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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Directly addressing the March 2012 Memorandum Decision, the Court indicated that in determining the appropriate disability rating for the Veteran's service-connected left eye exotropia, the Board may consider the interaction of the left eye and the non-service-connected right eye. In an October 2008 personal statement, the Veteran stated that his service-connected left eye disability has caused the inability to focus with his right eye even though he also indicated that he could see fairly well using one eye at a time. He explained that he lacks depth perception, which affects his ability to drive, participate in sports, hunt, or perform other activities requiring depth perception. In the December 2012 examination report, the VA examiner indicated that the Veteran had alternating, large angle exotropia, which resulted in the inability to use stereoscopic vision and impaired depth perception. While the VA examiner also noted that the depth perception impairment is only cosmetic, the Board finds that the Veteran is competent and credible to state that the lack of depth perception resulted in more than cosmetic impairment, including difficulties with driving and other activities of daily living. In addition, the December 2012 examiner indicated that the left eye exotropia impacts the Veteran's ability to work as he could not perform tasks requiring high levels of depth perception. As such, the Board finds that the evidence of record, specifically, the Veteran's lay statements and the findings in the December 2012 examination report, suggests that the Veteran's left eye exotropia constitutes an unusual disability picture as indicated by the Veteran's lack of sterotropic vision and impaired depth perception, resulting in the inability to drive or engage in certain activities involving depth perception, and marked interference with employment such that the regular schedular standards have been rendered impractical. Accordingly, the issue of an increased evaluation for left eye exotropia on an extraschedular basis is REMANDED for the following action: 1. Refer the case to the Director, Compensation and Pension Service, for a determination as to whether the Veteran is entitled to the assignment of an extraschedular rating for left eye exotropia in accordance with the provisions of 38 C.F.R. § 3.321(b). The Director, Compensation and Pension Service, is requested to provide adequate reasons and bases for any decision. 2. Upon a response from the Director, Compensation and Pension Service, undertake any adjudicative actions necessary. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded an opportunity to respond. The case should then be returned to the Board for further review, if in order. The Veteran 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. 2010). ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs