Citation Nr: 1317984 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-32 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for bilateral diabetic retinopathy. 2. Entitlement to total disability due individual unemployability due to service-connected disabilities (TDIU), to include extraschedular consideration. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1965 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2008 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). In the November 2008 rating decision, in pertinent part, the RO granted service connection for diabetic retinopathy with a 10 percent evaluation, effective from September 15, 2008. In the January 2010 rating decision, the RO denied the claim for TDIU. In May 2011, the Veteran testified before the undersigned during a Travel Board hearing at the RO. A copy of the hearing transcript has been associated with the claims. The issue of entitlement to service connection for hypertension as due to the service-connected diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. This case was previously before the Board in March 2012, wherein it was remanded for additional due process considerations and development. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the March 2012 remand insofar as the Veteran's claim for an increased initial disability for bilateral diabetic retinopathy, as the Veteran was afforded a VA examination in April 2012. Unfortunately, the Board finds that still further development is required, as the RO has not fully complied with the Board's March 2012 remand directives as to the issue of entitlement to TDIU. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The issue of TDIU is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Throughout the rating period on appeal, the Veteran's bilateral diabetic retinopathy is productive of corrected visual acuity of 20/100 in the right eye and 20/40 or better in the left eye. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for bilateral diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.84a, Diagnostic Code 6079 (2008); 38 C.F.R. § 4.79, Diagnostic Codes 6006, 6066 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in September 2008, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for an increased rating, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claim. The Veteran was examined by VA in connection with his claim for an increased rating for his diabetic retinopathy in 2009 and 2012. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to rate the Veteran's service-connected disability, including his history and clinical evaluation. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. The Veteran's appeal for a higher evaluation is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2012 VA examination, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his disability worsened since the April 2012 VA examination; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that the disability on appeal has worsened since the last VA examination and VA treatment records in 2012. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Rating Disabilities Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of the award when his disability may have been more severe than at other times during the course of his appeal. Increased Rating for Diabetic Retinopathy The schedular criteria for evaluating disabilities of the spine have undergone revision during the pendency of this appeal. At the time of the Veteran's claim and initial disability evaluation, in September 2008, he was rated in accordance with 38 C.F.R. § 4.84a, Diagnostic Code 6079 for impairment of central visual acuity. The rating criteria at that time called for a 10 percent disability rating whether there was vision in one eye of 20/100 and vision in the other eye of 20/40. An increased, 20 percent evaluation was warranted for vision in one eye of 20/100 and vision in the other eye of 20/50. See 38 C.F.R. § 4.84a, Diagnostic Code 6079 (2008). The rating criteria was amended in 2008. 73 Fed. Reg. 66,550 (Nov. 10, 2008). According to the revised rating criteria, retinopathy is evaluated on the basis of visual impairment or incapacitating episodes, whichever results in a higher evaluation. However, the evidence also does not show that the Veteran's diabetic retinopathy has been productive of incapacitating episodes for the entire rating period on appeal. Under the applicable rating criteria, impairment of central visual acuity is evaluated from noncompensable to 90 percent disabling based on the degree of the resulting impairment of visual acuity. See 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. A disability rating for visual impairment is based on the best distance vision obtainable after the best correction. See 38 C.F.R. § 4.75. According to the revised Code, the Veteran's impairment of central visual acuity is rated in accordance with in accordance with 38 C.F.R. § 4.79, Diagnostic Code 6066 for impairment of central visual acuity. A 10 percent disability rating is warranted where there is vision in one eye of 20/100 and vision in the other eye is 20/40. An increased, 20 percent evaluation is warranted for vision in one eye of 20/100 and vision in the other eye of 20/50. See 38 C.F.R. § 4.79, Diagnostic Code 6066 (2012). The Veteran contends that he is entitled to an increased disability rating for his bilateral diabetic retinopathy. He has reported experiencing blurred vision and episodic vision loss. After a review of all the evidence, lay and medical, the Board finds against an evaluation in excess of 10 percent for the Veteran's bilateral diabetic retinopathy. At the November 2009 VA examination, the Veteran had corrected visual acuity of 20/30 in the right eye and 20/20 in the left eye. Extraocular muscles had full range of motion without diplopia and cranial nerves were intact. Goldmann visual fields were slightly restricted in the right eye but normal in the left eye. The assessment was moderate to severe non-proliferative diabetic retinopathy. The April 2012 VA examination report indicated that the Veteran had corrected visual acuity of 20/100 in the right eye and 20/40 or better in the left eye. The Veteran's pupils were round and reactive to light; there was no evidence of corneal irregularity, diplopia, or visual field defects. Slit lamp and external eye examinations were normal. The examiner's assessment was that the Veteran's retinopathy has progressed to severe non-proliferative due to persistent macular edema. Thus, applying the facts to the criteria set forth above, the Veteran remains entitled to no more than a 10 percent evaluation for his service-connected bilateral diabetic retinopathy for the entire rating period on appeal under either the previous or current General Rating Formula for Diseases of the Eye. Further, the evidence does not show that the Veteran anatomical loss of an eye, no more than light perception in one eye, poor vision or blindness of the eye. As previously stated, there is also no demonstration of a severe irregular astigmatism or diplopia. For these reasons, the Board finds that the Veteran's current 10 percent rating for his bilateral diabetic retinopathy compensates him for the extent of the impairment of his visual acuity under either the previous or current rating criteria. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for his service-connected disability on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology for each of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's bilateral diabetic retinopathy are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provides for a disability rating based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the bilateral diabetic retinopathy has symptoms which are part of the schedular rating criteria. Regarding the bilateral diabetic retinopathy, the Veteran had complaints of blurred vision and episodic loss of vision in the right eye, but did not have additional functional impairment beyond that which was contemplated by the rating criteria. The Veteran has corrected vision of no worse than 20/100 in the right eye and 20/40 in the left eye. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with bilateral diabetic retinopathy, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability rating in excess of 10 percent for bilateral diabetic retinopathy is denied. REMAND The Veteran asserts that entitlement to an award of TDIU is warranted. He contends that he is unable to work due to his service-connected diabetes mellitus disability. After a review of the record, the Board finds that additional development is needed prior to readjudication of the claim. In the Board's prior, March 2012 remand, the AMC/RO was instructed to refer the Veteran's TDIU claim to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). The Court has held that the RO's compliance with the Board's remand instructions is neither optional nor discretionary. See Stegall, supra. A review of the claims file indicates that the RO did not refer the Veteran's TDIU claim to VA's Director of C & P upon finding that the Veteran's current percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), as instructed by the Board. VA policy is to grant a TDIU in all cases where service-connected disability precludes gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board reiterates that the Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Under Secretary for Benefits or the Director of the Compensation & Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)"); accord Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The Board may, however, consider and adjudicate the issue of whether the RO should refer such a matter to appropriate personnel for extraschedular consideration pursuant to the procedures of 38 C.F.R. § 4.16(b), and further may determine, after an initial review by the authorities pursuant to 38 C.F.R. § 4.16(b), the propriety of assigning an extraschedular evaluation. The evidence of record shows that the Veteran's disability picture may preclude him from gainful employment as truck driver with a commercial driver's license (CDL). The Veteran was previously employed for 35 years as truck driver, but he is no longer able to perform the duties of required by such employment because of the severity of his diabetes mellitus disability. The Veteran needs to take insulin injections for his diabetes mellitus. The Federal Motor Carrier Safety Regulations provide that an individual is not physically qualified to drive a commercial motor vehicle if he has an established medical history of diabetes mellitus currently requiring insulin for control. For these reasons, the Board finds that a remand for consideration of the issue of entitlement to an extraschedular rating for TDIU under the provisions of 38 C.F.R. § 4.16(b) is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the issue of the entitlement to TDIU to the Director of the Compensation and Pension Service for consideration of assignment of an extraschedular rating for TDIU, pursuant to 38 C.F.R. § 4.16(b). 2. Thereafter, the RO/AMC should readjudicate the Veteran's TDIU claim (to include for extraschedular consideration), in light of all pertinent evidence and legal authority. If the benefit sought is not granted to the Veteran's satisfaction, send him and any representative a Supplemental Statement of the Case and give them time to respond to it before returning the case to the Board for further appellate consideration. The appellant 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. 2012). ______________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs