Citation Nr: 1317137 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 12-31 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for right eye traumatic iridoplegia, iris recession glaucoma, macular degeneration, and pseudophakia, with prior traumatic cataract (right eye disability). 2. Entitlement to an evaluation in excess of 30 percent for headaches. 3. Entitlement to an evaluation in excess of 10 percent for concussion, residuals of a head injury. 4. Entitlement to a total disability rating, for compensation purposes, based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from May 1958 to May 1960. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. These documents have been reviewed in conjunction with this appeal. 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 issues of an increased rating for concussion, residuals of head injury, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right eye disability, which is postoperative for cataracts with pseudophakia, is characterized by no more than light perception. 2. The Veteran's left eye does not have visual acuity of 20/200 or less; or peripheral field of vision of 20 degrees or less. As such, the paired organ rule does not apply. 3. The Veteran's headaches, when prostrating (with photophobia, phonophobia, and nausea), have been reported to last between fifteen minutes and an hour at a time. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for traumatic cataract with glaucoma and macular defect, right eye, are not met. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 2002); 38 C.F.R. §§ 3.383, 4.1, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6027-6064 (2012) 2. The criteria for an evaluation in excess of 30 percent for headaches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4. 124a, Diagnostic Code (DC) 8100 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in December 2011 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. 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 appellant. 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. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Eye Disability The Veteran was originally service connected for residuals of traumatic cataract of the right eye and indioplegia in a February 1962 rating decision, which awarded a noncompensable (0 percent) rating. In a February 1990 rating decision, that evaluation was increased to 10 percent, effective December 4, 1989, and the disability was recharacterized as traumatic cataract with glaucoma and macular defect, right eye. In an August 2007 rating decision, that evaluation was increased to 30 percent, effective March 23, 2007, and the Veteran was awarded special monthly compensation for loss of use of right eye with light perception as of that date. The Veteran filed the current claim for an increased evaluation in August 2010 as part of his claim for TDIU. During the course of this appeal, the Veteran's right eye disability has been recharacterized as right eye traumatic iridoplegia, iris recession glaucoma, macular degeneration, and pseudophakia, with prior traumatic cataract, as reflected on the title page. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of his August 2010 claim. The Board notes the Veteran's confusion about the disability evaluations relating to the eyes as stated in his April 2012 statement. This disability evaluation is not the percentage of blindness, but rather the percentage disabled. The record clearly shows that the Veteran's right eye is considered legally blind; however one legally blind eye does not render the Veteran 50 percent disabled under the rating criteria. Instead, the following rating diagnostic codes apply: Under Diagnostic Code 6027, preoperative cataracts and postoperative cataracts with a replacement lens (pseudophakia) are evaluated based on visual impairment; postoperative cataracts without a replacement lens are evaluated based on aphakia. 38 C.F.R. § 4.79. In this case, the Veteran's cataract is postoperative with a replacement lens. As such, this disability is evaluated based on visual impairment. The Veteran's left eye is not service connected, thus a visual acuity of 20/40 is assigned to it for use in the general rating formula. Under the rating criteria for impairment of central visual acuity, the current 30 percent disability evaluation is assigned for no more than light perception in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, DC 6064. Again, as the Veteran's left eye is not service connected, it is 20/40 for purposes of these criteria. In order to warrant a higher disability evaluation of 40 percent, the Veteran's service connected right eye disability must be characterized by anatomical loss of that eye. 38 C.F.R. § 4.79, DC 6063. As mentioned above, the record is clear in noting that the Veteran is legally blind in the service connected right eye throughout the entire appeal period. Indeed, the June 2011 VA examination found no light perception in the right eye. There is no evidence of the anatomical loss of the Veteran's right eye. As such, a higher evaluation based under DC 6063 is not warranted. The Board has also considered whether the paired organ rule is applicable in this case. Under the paired organ rule, compensation is payable for the combination of service connected and nonservice connected impairment of vision as if both eyes were service connected, provide that the nonservice connected disability was not due to the Veteran's own willful misconduct; and the impairment of vision in each eye is rated at a visual acuity of no more than 20/200 or the peripheral field of vision for each eye is no more than 20 degrees. 38 U.S.C.A. § 1160; 38 C.F.R. § 3.383. The recorded visual acuity of the Veteran's left eye is far vision uncorrected 20/20, near vision uncorrected 20/60. See id. His loss of peripheral field of vision, as shown on the Goldmann visual field chart is less than 10 percent. See June 2011 VA examination. These findings are better than the measurements given. Thus, the paired organ rule is inapplicable to the Veteran's case. Thus, the preponderance of the evidence is against a rating higher than 30 percent for the Veteran's right eye disability. 38 C.F.R. § 4.7. Headaches The Veteran was originally service connected for headaches in a March 2008 rating decision. That decision award a 10 percent evaluation, effective March 23, 2007. In a March 2009 rating decision, this evaluation was increased to 30 percent, effective March 23, 2007. The Veteran filed a notice of disagreement with the original March 2008 rating decision, but failed to perfect his appeal when he submitted an untimely substantive appeal (VA Form 9) more than 60 days after issuance of a Statement of the Case. He was informed of the untimeliness finding in an October 2009 letter. The Veteran filed the current claim for an increased evaluation in August 2010 as part of his claim for TDIU. Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. 38 C.F.R. § 4.124a. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. Id. During the appeals period, the reported duration and intensity of the Veteran's headaches has varied. At the time of his April 2011 VA examination, the Veteran reported weekly migraines lasting 45 minutes to an hour and requiring him to go into a dark room. During the June 2011 examination, the Veteran reported weekly headaches lasting for hours, but allowing for ordinary activity. Therefore, the examiner noted that these headaches were not prostrating. Private treatment records dated May 2012 note daily headaches lasting for 15 minutes with photophobia, phonophobia, and nausea (but not vomiting). These headaches usually occur in the morning, but can recur at other times during the day. Thus, the Board finds that the Veteran's headaches, when prostrating, have been reported to be between fifteen minutes and an hour long. The longer reported headaches were specifically not found to be prostrating. Based on the above, the Veteran's headaches most nearly approximates the criteria for the current 30 percent evaluation. The Veteran's headache symptoms, which consist of daily headaches with photophobia, phonophobia, and nausea lasting approximately fifteen minutes, warrant no more than a 30 percent evaluation under Diagnostic Code 8100. See 38 C.F.R. § 4. 124a. The next higher evaluation of 40 percent under that rating criteria requires prolonged attacks productive of severe economic inadaptability, which is not shown. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. While the Veteran's headaches are frequent, this does not increase the duration of the headaches to the level of a prolonged attack. Likewise severe economic inadaptability, related to this disability, is not shown. In a September 2011 addendum, the June 2011 examiner specifically found that mild headache alone was not the reason for the Veteran's unemployability. As such, the preponderance of the evidence is against a rating higher than 30 percent for the Veteran's headaches. 38 C.F.R. § 4.7. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities, such as anatomical loss of the eye, increased impairment of the nonservice connected eye, and prolonged prostrating attacks of migraines, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. ORDER An evaluation in excess of 30 percent for right eye traumatic iridoplegia, iris recession glaucoma, macular degeneration, and pseudophakia, with prior traumatic cataract, is denied. An evaluation in excess of 30 percent for headaches is denied. REMAND The record shows that the Veteran had a stroke in February 2012. He has attributed this to his service connected concussion. A medical evaluation is necessary to determine whether this stroke was a symptom of his service connected disability and, if so, the extent to which his symptoms are increased as a result. The issue of TDIU is inextricably intertwined with the issue of entitlement to an increased evaluation for service connected concussion. An examination of the Veteran's current concussion symptoms may affect the previous employability opinions, which in turn could render any review of the decision of the TDIU claim meaningless and a waste of appellate resources. As such, it must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the examiner who performed the June 2011 examination to review the claims folder, including this remand. The examiner is asked to comment on the February 2012 stroke. Specifically, the examiner is asked to determine whether this stroke is a symptom of the Veteran's service connected concussion, residuals of head injury. If these questions cannot be answered without further examination; or the previous examiner is unavailable, the Veteran should be afforded a new examination. 2. Thereafter, the RO/AMC should readjudicate the claims in light of the additional evidence obtained. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs