Citation Nr: 1317669 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 02-08 619A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent from October 30, 1996 to September 12, 2006; in excess of 20 percent from September 13, 2006, to April 20, 2009; and in excess of 50 percent as of April 21, 2009, for bilateral glaucoma with diabetic retinopathy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active military service from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision issued by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded service connection for glaucoma, and assigned an initial 10 percent rating, effective July 9, 2001. The Veteran appealed with respect to the propriety of the initial rating assigned. In February 2002, the RO granted an earlier effective date of October 30, 1996, for the award of service connection for glaucoma, the date of the receipt of the original claim for service connection. In February 2005, the Board remanded the Veteran's initial rating claim to the RO for further development. Specifically, the RO was instructed to afford the Veteran for VA eye examination to reassess the severity of his disability. In a September 2008 rating decision, the RO recharacterized the Veteran's eye disability to include diabetic retinopathy and increased the initial evaluation to 20 percent, effective September 13, 2006. Thereafter, in January 2009, the Board failed to acknowledged the fact that the Veteran was in receipt of staged ratings for his bilateral eye disability and instead characterized the issue as entitlement to an initial disability rating in excess of 10 percent for glaucoma with diabetic retinopathy, and remanded the claim for further development because the Board determined the September 2006 examination was inadequate for rating purposes. Therefore, the RO was again instructed to afford the Veteran for a VA eye examination. In a November 2010 rating decision, after the Veteran was afforded a VA examination in accordance with the remand directives, the RO again increased the initial rating of the Veteran's bilateral eye disability to 50 percent, effective April 21, 2009. Thereafter, in the November 2010 supplemental statement of the case (SSOC), the February 2011 Board remand, and the August 2012 SSOC, the agency of original jurisdiction (AOJ) and the Board continued to characterize the issue on appeal as two separate issues: entitlement to an initial rating in excess of 10 percent for glaucoma with diabetic retinopathy and entitlement to a rating in excess of 50 percent for diabetic retinopathy. However, the SSOCs and the Board remand all fail to acknowledge the interim period containing the 20 percent rating for the Veteran's disability from September 13, 2006, to April 21, 2009. As such, the Board properly characterized the issue on appeal in the November 2012 remand and remanded the case in order to afford the AOJ an opportunity to readjudicate the second stage of the Veteran's disability rating, as such had not previously been done. The case now returns for further appellate consideration. As will be discussed further herein, there has been substantial compliance with the Board's remand directives such that no further action is necessary in this regard. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. For the appeal period extending from October 30, 1996 to September 12, 2006, the Veteran's glaucoma was manifested by no loss of visual fields bilaterally and with corrected visual acuity of 20/25 bilaterally. 2. For the appeal period extending from September 13, 2006, to April 20, 2009, the Veteran's glaucoma, to include with diabetic retinopathy, was manifested by impaired field of vision with concentric contraction of 56 degrees in the right eye and 50 degrees in the left eye, but no greater; and visual testing which was no worse than distance vision of 20/50 bilaterally; corrected to 20/25 - 1 in the right eye, and 20/30 - 2 in the left eye; and uncorrected near vision of 20/70 bilaterally; corrected to 20/25. 3. For the appeal period extending from April 21, 2009 forward, the Veteran's glaucoma, to include with diabetic retinopathy, was manifested by field of vision with concentric contraction to be limited to 30 degrees bilaterally, but not limited to between 15 and 6 degrees bilaterally, and his vision was not shown to be 20/100 in one eye and 20/200 in the other eye, or worse. CONCLUSIONS OF LAW 1. For the appeal period extending from October 30, 1996 to September 12, 2006, the criteria for an initial evaluation in excess of 10 percent for glaucoma have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.84a, Diagnostic Codes 6013, 6080 (2008). 2. For the appeal period extending from September 13, 2006 to April 20, 2009, the criteria for an evaluation in excess of 20 percent for glaucoma with diabetic neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.79, 4.84a, Diagnostic Codes 6013, 6080 (2008), (2012). 3. For the appeal period extending from April 21, 2009 forward, the criteria for an evaluation in excess of 50 percent for glaucoma with diabetic neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.79, 4.84a, Diagnostic Codes 6013, 6080 (2008), (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This 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). The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his eye disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his eye disability was granted and an initial rating was assigned in the August 2001 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue on appeal has been obtained. In this regard, the Veteran's service treatment and post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in 1999, 2002, 2006, 2009, 2010, 2011 and 2012 in conjunction with the claim on appeal. Neither the Veteran nor his representative has alleged that such are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected eye disability as they include an interview with the Veteran, a review of the record, and a full eye examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. In February 2005, January 2009, February 2011, and November 2012, the Board remanded the case for additional development, to include obtaining additional VA and private records, affording the Veteran VA examinations, and affording the AOJ an opportunity to adjudicate all three stages of the Veteran's eye disability. As discussed in the preceding paragraphs, all identified and outstanding records have been obtained, the Veteran has been afforded numerous VA examinations that address the relevant rating criteria, and through the repeated readjudication of the Veteran's claim in SSOCs, the AOJ has evaluated all three stages of the Veteran's eye disability. Therefore, the Board finds that the AOJ has substantially complied with the Board's remand directives such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Background The Veteran filed an original service connection claim for diabetes mellitus on October 30, 1996. The file contains a private medical statement of Dr. D.J. dated in July 1990. The doctor indicated that the Veteran had mild hemorrhagic retinopathy and was being treated for diabetes. It was also noted that he had borderline elevated intraocular pressure and optics discs which were suspicious for glaucomatous damage. In hearing testimony presented at the RO in October 1997, the Veteran stated that upon his last examination, he had blood vessel pops in the back of his eyes, and indicated that his eyes had been treated about a year prior to service. In a June 1999 Board decision, service connection for a bilateral eye disorder was denied. VA records dated in September 1999 document an optometry note indicating that the Veteran was having trouble reading and was diabetic. The Veteran requested an eye consult for decreasing near vision. In March 2000, the Veteran was seen by optometry for a diabetic eye screening. He reported that he could see a little far off, but not at all close up or to read. It was noted that he did not wear glasses. He gave a history of being told that he had blood in the back of the eyes from diabetes and possible glaucoma. A 30 years history of diabetes was mentioned. Examination revealed right eye vision of 20/30 and left eye vision of 20/30. The cornea and iris were normal bilaterally. Diagnoses of bilateral moderate diabetic retinopathy; glaucoma suspect due to large asymmetric c/d ratio; and CHZ/presbypoia, were made. Records from the Social Security Administration include an April 2000 decision determining the Veteran to be disabled from June 1998 due to severe posttraumatic stress disorder. In July 2000, the Veteran underwent a VA eye examination due to suspected glaucoma. Unaided vision was 20/20 and 20/25-2. Visual field deficits bilaterally were noted, and it was commented than this was now much worse than that shown in 1998. Primary open-angle glaucoma (POAG), left greater than right, with increasing visual field loss was assessed. It was recommended that a trial of Xalatan be started. A VA diabetes examination was conducted in April 2001. The report indicated that the Veteran was nearsighted, wore glasses, and had glaucoma in the left eye. He also gave a history of blood in the back of the left eye. Visual acuity was 20/25 in the right eye, and 20/25 in the left eye, near, corrected. In June 2001, the Veteran was seen by VA optometry. Vision was 20/20 bilaterally and diagnoses of POAG, left greater than right; and mild bilateral diabetic retinopathy, were made. When seen by VA optometry in December 2001, right eye vision was 20/20-3, and left eye vision was 20/25-2. Retinal thickening of the macula was noted. Right eye increased constriction since last visual field evaluation was noted; left eye visual field testing showed improvement since prior testing. Glaucoma (non-compliant) was assessed. When evaluated in February 2002, right eye vision was 20/20-3, and left eye vision was 20/25-2. Bilateral POAG was assessed. It was noted that better lowering effect was shown with TXE. In July 2002, the Veteran was seen for a 4 month follow-up. Right eye vision was 20/20- sc, and left eye vision was 20/20, and bilateral POAG was assessed. Service connection for both diabetes mellitus and glaucoma was established in an August 2001 rating decision, at which time an initial 10 percent rating was assigned for glaucoma, effective from July 9, 2001. In August 2001, the Veteran filed a Notice of Disagreement with the assigned effective date, indicating that this should be retroactive to 1996. In a February 2002 rating action, the RO granted an earlier effective date of October 30, 1996, the date of the receipt of the original claim for service connection for diabetes (and complications), for the award of service connection for glaucoma, and the assignment of an initial 10 percent evaluation. A VA eye examination was conducted in August 2002. The Veteran gave a history of glaucoma diagnosed in 1997 or 1998, and treatment with Timoptic XE. Uncorrected visual acuity at distance was 20/20 bilaterally. Uncorrected vision (near) was 20/40 in both eyes. Best corrected near vision bilaterally was 20/20. Confrontational visual field, ocular motility and external examination were within normal limits. There were 2+ cortical, and 1+ nuclear sclerotic changes of the lens of the right eye. There were 2+ cortical, and 1+ nuclear sclerotic changes of the lens of the left eye, along with findings of trace posterior subcapsular changes of the lens. Examination of the posterior segment revealed disks that were flat with sharp margins. The cup disk ratio was 0.5 and 0.8 in the right and left eyes, respectively. There was evidence of blot hemorrhages, neurofibrillary infarcts and intraretinal microangiopathy of the vessels in both eyes. Diagnoses of glaucoma; background diabetic retinopathy - rule out pre-proliferative diabetic retinopathy; and presbyopia, were diagnosed. A rating action of October 2002, as well as an October 2002 Supplemental SOC, both reflect that a 10 percent evaluation was assigned for service-connected glaucoma, effective from October 1996. The propriety of the 10 percent evaluation for glaucoma, and the assignment of the October 1996 effective date, were reviewed in a July 2004 memorandum for the file and confirmed. The case initially came before the Board in February 2005, at which time it was remanded for further development. A VA examination of the eyes was conducted in September 2006, and the claims file was reviewed. The Veteran reported that he was being followed by VA and the Columbia Eye Clinic for his eye care. The Veteran complained of blurred vision, worse, on the left side, which he attributed to a vitreous hemorrhage. He also indicated that both eyes had received panretinal photocoagulation laser treatment. He also reported that he used several types of eye drops for both eyes. The Veteran denied having: decreased vision; distorted vision; watery eyes, diplopia; or visual field defect. Physical examination revealed that uncorrected distance vision was 20/50 bilaterally; corrected to 20/25 - 1 in the right eye, and 20/30 - 2 in the left eye. Uncorrected near vision was 20/70 bilaterally; corrected to 20/25, bilaterally. Examinations for extraocular motility, intraocular pressure and anterior segment were normal bilaterally. Nuclear sclerotic cataracts (1-2+) were found in both eyes. Also noted were rare dot-and-blot hemorrhages in the right eye, and a vitreous hemorrhage in the left eye. Increased cup-to-disc ratios of 0.8 in the right eye and .85 in the left eye were also noted. Goldmann visual field testing was conducted, but was described as somewhat unreliable due to findings of inconsistent responses to light stimulus. Findings were described as showing concentric contraction of 56 degrees in the right eye and 50 degrees in the left eye. The testing otherwise showed normal physiologic blind spots, no definite scotoma, and mild generalized constriction of the visual field on the left compared to the right of approximately 20 degrees. The following diagnoses were made: diabetes mellitus with mild to moderate nonproliferative diabetic retinopathy of the right eye and proliferative diabetic retinopathy with vitreous hemorrhage of the left eye; glaucoma, left greater than right eye; and bilateral presbyopia and hyperopia. The examiner concluded that the Veteran had moderately severe glaucoma, worse on the left side than right, as well as diabetic retinopathy. He added that visual field loss was 20 percent greater on the left side than the right. It was explained that both glaucoma and diabetic retinopathy were at least as likely as not causative of the Veteran's differences in visual acuity and field loss in the eyes. In a September 2008 rating action, an increased evaluation of 20 was granted, and the service-connected eye condition was recharacterized as glaucoma with diabetic retinopathy, effective from September 13, 2006 (the date of the VA examination). The case came before the Board again in January 2009, at which time it was again remanded for further development. Another VA eye examination was conducted in April 2009 and the claims file was reviewed. The Veteran reported that he was taking eye drops for treatment of glaucoma and wore corrective spectacles part-time with overall good vision. The Veteran primarily complained of blurred vision. Physical examination revealed that uncorrected distance vision was 20/30 in the right eye and 20/40 in the left eye; corrected to 20/20 bilaterally. Uncorrected near vision was 20/40 in the right eye and 20/50 in the left eye; corrected to 20/20, bilaterally. Extraocular motility was without deficit. There was no evidence of ptosis or proptosis. Lenses revealed 1 to 2+ nuclear sclerotic cataract changes in each eye. Cup-to-disc ratios of 0.8 in the right eye and .85 in the left eye were also noted. Goldmann visual field testing revealed right eye constriction of the nasal visual field, but good preservation of the temporal visual field. Left eye examination revealed some inferonasal field constriction, but was otherwise intact and normal. The following diagnoses were made: diabetes mellitus with quiescent proliferative diabetic retinopathy, status post panretinal photocoagulation both eyes; nuclear sclerotic and cortical cataracts of both eyes; hyperopia with astigmatism; presbyopia; and primary open angle glaucoma. Another VA examination of the eyes was conducted in May 2010. At that time, uncorrected distance and near vision were 20/400 bilaterally, corrected to 20/20 bilaterally. Open-angle glaucoma with visual field defects was diagnosed. The examiner explained that Goldmann visual field testing revealed concentric 360 degree visual field deficits, of approximately 30 degrees in all gazes of the right and left eyes. In an addendum provided in November 2010, the VA examiner explained that all 16 meridians of the Goldmann visual field test had been performed and considered in conjunction with the May 2010 examination and that another test need not be conducted. In a November 2010 rating decision, the RO granted an increased rating of 50 percent for the Veteran's bilateral eye disability, effective from April 21, 2009. Following another Board remand of February 2011, a VA eye examination was conducted in March 2011. The Veteran reported having a history of multiple laser surgeries in both eyes, due to diabetes. Physical examination revealed that uncorrected distance vision was 20/25-2 in the right eye, and 20/30 in the left eye; corrected to 20/25 bilaterally. Uncorrected near vision was 20/400 bilaterally, corrected to 20/25, bilaterally. Goldmann visual field testing revealed concentric restriction 360 degrees, to approximately between 20 to 30 degrees, in both eyes. Extraocular motility and range of motion were full. Glaucoma was diagnosed, and the examiner commented that there was no evidence of active diabetic retinopathy on this examination. In May 2012, yet another VA eye examination was conducted. The Veteran complained of trouble driving at night. Physical examination revealed that uncorrected distance vision was 20/40+ in the right eye, and 20/50 in the left eye; corrected to 20/25+ in the right eye and 20/30+ in the left eye. Uncorrected near vision was 20/200 bilaterally, corrected to 20/25, bilaterally. Visual fields to confrontation showed constriction 360 degrees in both eyes. Glaucoma, diabetes and cataracts were diagnosed. In August 2012, an addendum was provided at which time, the examiner indicated that 2 Goldmann visual field tests had been conducted in May 2012, but the actual charts could not be retroactively reproduced and associated with the claims folder. Analysis The Veteran seeks entitlement to an initial rating in excess of 10 percent from October 30, 1996 to September 12, 2006; in excess of 20 percent from September 13, 2006, to April 20, 2009; and in excess of 50 percent from April 21, 2009, forward, for service-connected bilateral glaucoma with diabetic retinopathy. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the present appeal. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that the schedular criteria for rating eye disabilities were amended during the pendency of the appeal. See 73 Fed. Reg. 66,543-66,554 (November 10, 2008); see also corrections at 74 Fed. Reg. 7,648 (February 19, 2009). Such regulations apply only to claims filed on or after December 10, 2008. While the Veteran filed his claim prior to such date, the Board observes that the RO specifically considered his claim under the post-December 2008 regulation changes in the November 2010 supplemental statement of the case. Out of fairness to the Veteran, the Board will consider both sets of regulations in evaluating his eye disability. In this regard, pursuant to governing legal precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. See VAOPGCPREC 7-03, 69 Fed. Reg. 25,179 (November 19, 2003), citing to Landgraf v. USI Film Products, 511 U.S. 244 (1994). In increased rating cases such as this one, where the rating criteria is amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. When service connection was initially granted in an August 2001 rating action, the Veteran's eye condition was characterized as glaucoma only and the condition was evaluated under 38 C.F.R. § 4.84a, Diagnostic Code 6013. Under this code, simple primary noncongestive glaucoma was to be rated on impairment of visual acuity or field loss, with a minimum rating of 10 percent provided under the code. Impairment of central visual acuity is evaluated from 0 to 100 percent under Diagnostic Codes 6061 through 6079. Also, Diagnostic Code 6080 provides ratings for impairment of field vision from 10 to 100 percent. Later, in a September 2008 rating action, the RO recharacterized the eye condition to include diabetic retinopathy, and the condition was evaluated under Diagnostic Code 6080, used for the evaluating visual field impairment. Since the beginning of the appeal period in this case the rating criteria have remained the same and are found at 38 C.F.R. § 4.84a (1996 to 2008); as explained earlier, changes were made and new rating criteria pertaining to eye disorders became effective December 10, 2008, and the criteria were redisignated under 38 C.F.R. § 4.79 (2009). According to regulations for rating visual acuity (38 C.F.R. §4.84a), measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. These provisions explain how ratings are assigned based on impairment of field vision, as follows: The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 represents the average contraction for rating purposes. According to Table III, the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. The total visual field is 500 degrees. Under Diagnostic Code 6080, loss of temporal half of the visual field warrants a 30 percent rating if bilateral, a 10 percent rating if unilateral, or is rated as 20/70. Loss of the nasal half of the visual field bilaterally results in a 20 percent rating, unilaterally results in a 10 percent evaluation, or may be rated as 20/50. 38 C.F.R. § 4.84a, Diagnostic Code 6080. Concentric contraction of the visual field to 5 degrees, results in a 100 percent evaluation if bilateral, a 30 percent rating if unilateral, or may be rated as 5/200. Concentric contraction of the visual field to 15 degrees but not to 5 degrees results in a 70 percent bilateral evaluation, a 20 percent unilateral rating, or is rated as 20/200. Concentric contraction of the visual field to 30 degrees but not to 15 degrees, bilaterally, results in a 50 percent evaluation, unilaterally results in a 10 percent rating, or is rated as 20/100. Concentric contraction of the visual field to 45 degrees but not to 30 degrees bilaterally results in a 30 percent rating, unilaterally results in a 10 percent evaluation, or is rated as 20/70. Concentric contraction of the visual field to 60 degrees but not to 45 degrees results in a bilateral evaluation of 20 percent, a unilateral evaluation of 10 percent, or rate as 20/50. Id. Under Note 1, a correct diagnosis reflecting disease or injury should be cited. Id. Under Note 2, demonstrable pathology commensurate with the functional loss will be required. The concentric contraction evaluations require contraction within the stated degrees, temporally; the nasal contraction may be less. The alternative ratings are to be employed when there is ratable defect of visual acuity, or a different impairment of the visual field in the other eye. Concentric contraction resulting from demonstrable pathology to 5 degrees or less will be considered on parity with reduction of central visual acuity to 5/200 (1.5/60) or less for all purposes including entitlement under § 3.350(b)(2) of this chapter; not however, for the purpose of § 3.350(a) of this chapter. Id. Pursuant to the new criteria, effective December 2008, under Diagnostic Code 6013, open-angle glaucoma is to be evaluated based on visual impairment. A 10 percent evaluation is the minimum evaluation if continuous medication is required. Impairment of central visual acuity is evaluated from 0 to 100 percent under Diagnostic Codes 6061 through 6066. Diagnostic Code 6080 provides ratings for impairment of field vision from 10 to 100 percent. While the Diagnostic Codes pertaining to impairment of central visual acuity were renumbered, the substantive criteria did not change with the December 2008 revisions. Similarly, Diagnostic Code 6080 remained largely substantively the same as the pre-December 2008 revisions with the exception of adding ratings for loss of the inferior and superior half of the visual field, which are not indicated in the present case, and reducing the rating from 20 percent to 10 percent for bilateral visual filed loss of nasal half and bilateral concentric contraction of the visual field to 60 degrees but not to 45 degrees. The Notes were also removed. A. October 30, 1996 to September 12, 2006 The Veteran has been assigned a 10 percent rating for glaucoma under Diagnostic Code 6013 for this time period, which is the minimum rating under such diagnostic criteria. In order to be entitled to the next higher rating of 20 percent during the portion of the appeal period extending from October 30, 1996 to September 12, 2006, the evidence must show that the Veteran's glaucoma, produced impairment of corrected visual acuity consistent with any of the following measurement combinations: (a) 20/70 and 20/50; (b) 20/100 and 20/50; (c) 20/200 and 20/40; or (d) 15/200 and 20/40. 38 C.F.R. § 4.84a. Here, the evidence, which includes vision testing conducted in: March 2000, July 2000, April 2001, June 2001, December 2001, February 2002, July 2002, and August 2002, failed to reveal visual impairment consistent with any of the aforementioned combinations. In this regard, visual acuity during the relevant time period was demonstrated to be no worse than 20/30, corrected or uncorrected. Moreover, upon correction, the Veteran's visual acuity was noted to be, at worst, 20/25 bilaterally in April 2001. In addition, there was no indication during that time that he had any loss of visual field bilaterally. Therefore, the Board concludes that a rating in excess of 10 percent for glaucoma is not warranted for the portion of the appeal period extending from October 30, 1996 to September 12, 2006. B. September 13, 2006 to April 20, 2009 Based upon the evidence of record, the Board finds that the Veteran does not meet the criteria for an evaluation in excess of 20 percent from September 13, 2006, to April 20, 2009. The grant was based on findings of impaired field of vision with concentric contraction to 60 degrees, but not 45 degrees. Specifically, the Veteran had impaired field of vision with concentric contraction of 56 degrees in the right eye and 50 degrees in the left eye, as reported upon VA examination of September 13, 2006. Pursuant to the criteria in effect prior to December 2008, such results in a 20 percent rating pursuant to Diagnostic Code 6080. However, under the regulations in effect as of December 2008, only a 10 percent rating would be warranted under Diagnostic Code 6080. However, as the Veteran is entitled to the application of the criteria most favorable to his claim, the Board will not reduce his rating under the new regulations. See generally, Kuzma, supra; VAOPGCPREC 7-2003. In order to warrant the next-higher 30 percent rating, the evidence must show a visual field loss of the temporal or nasal half bilaterally (or inferior half bilaterally under the December 2008 regulation changes), concentric contraction of the visual field to 5 degrees unilaterally, or concentric contraction of the visual field to 45 degrees but not to 30 degrees bilaterally. Essentially, during this time period, there was no evidence of a visual field loss of the temporal half, nasal half, or inferior half bilaterally, concentric contraction of the visual field to 5 degrees unilaterally, or concentric contraction of the visual field to 45 degrees but not to 30 degrees bilaterally. Additionally, there was no indication of visual testing which was any worse than distance vision of 20/50 bilaterally; corrected to 20/25 - 1 in the right eye, and 20/30 - 2 in the left eye; and uncorrected near vision of 20/70 bilaterally; corrected to 20/25. In light of such findings, a higher rating is not warranted for the appeal period extending from September 13, 2006, to April 20, 2009. C. April 21, 2009, and forward Based upon the evidence of record, the Board finds that the Veteran does not meet the criteria for an evaluation in excess of 50 percent from April 21, 2009, forward. The grant was based on findings of impaired field of vision, severely constricted in both eyes to 30 degrees in all fields on Goldmann Visual Field Testing, as reported upon VA examination of May 2010. Under the pre-December 2008 and post-December 2008 regulations, such findings warrant a 50 percent rating under Diagnostic Code 6080. In order to warrant the next-higher 70 percent rating, the evidence must show a visual field loss, concentric contraction of between 15 and 6 degrees, bilaterally. During this time period, there was no evidence of severe visual field loss of concentric contraction to this degree bilaterally. Further in order to warrant an evaluation in excess of 50 percent based on visual impairment, findings would need to show vision of 20/100 in one eye and 20/200 in the other eye, to warrant a 60 percent evaluation; worse to warrant a still higher evaluation. This degree of visual impairment was not shown at any point since April 21, 2009. In light of such findings, an evaluation in excess of 50 percent is not warranted for the appeal period extending from April 21, 2009, forward. D. Other Considerations Upon application of the applicable rating criteria and regulation, the Board can find no basis for the assignment of an initial rating in excess of 10 percent from October 30, 1996 to September 12, 2006; in excess of 20 percent from September 13, 2006, to April 20, 2009; or in excess of 50 percent as of April 21, 2009, for bilateral glaucoma with diabetic retinopathy. During the entirety of the appeal period extending from October 1996, the Veteran has certainly been competent to report his symptoms, to include difficulty seeing and blurry vision. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007) (Veteran is competent to testify as to the continuity of symptomatology capable of lay observation). However, to the extent that he has stated that his service-connected bilateral eye disorder warrants higher evaluations, the medical findings do not support his contentions. In this regard, ratings for eye disabilities are determined by the impairment of visual acuity or loss of field of vision, both of which are assessed by medical testing. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion regarding the severity of his eye disability under the Rating Schedule. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board attaches greater probative weight to the medical findings of record. Upon reviewing the longitudinal record in this case, the Board finds that at no time during the appeal period has the Veteran's bilateral eye disorder been more disabling than as reflected by the currently assigned staged evaluations. See Fenderson, supra. Accordingly, there is no basis for the assignment of increased, further staged or separate ratings in this case. As there is a preponderance of the evidence against the Veteran's claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Accordingly, the appeal is denied. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted 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 that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) the Court explained how the provisions of 38 C.F.R. § 3.321(b)(1) are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability, with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the Veteran's eye disability, described as glaucoma with diabetic retinopathy, based on either visual impairment or impairment of field vision, and both sets of criteria have been considered in this case. The currently assigned staged rating for his eye conditions practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability, and still higher evaluations may be assigned on a schedular basis. See 38 C.F.R. § 4.1. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. Moreover, as the Board has determined that the first factor of the Thun test is not met, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization (and in this case there are none). Id. Therefore, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. , 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In the instant case, the holding of Rice is inapplicable since the evidence of record does not demonstrate that the Veteran has been rendered unemployable due solely to his service-connected bilateral eye disorder, nor have the Veteran or his representative so alleged. The Board notes that the Veteran has numerous service-connected conditions, for which a schedular evaluation of 100 percent has been effective since July 1999, and he is in receipt of special monthly compensation on two different bases. Thus, at this point, there is no cogent evidence of unemployability and entitlement to increased compensation based on TDIU is not warranted. Accordingly, there is no basis for the assignment of increased initial ratings in this case. As there is a preponderance of the evidence against the Veteran's claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Accordingly, the appeal is denied. ORDER An initial rating in excess of 10 percent from October 30, 1996 to September 12, 2006; in excess of 20 percent from September 13, 2006, to April 20, 2009; and in excess of 50 percent as of April 21, 2009, for bilateral glaucoma with diabetic retinopathy is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs