Citation Nr: 1319166 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 07-04 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for glaucoma prior to March 16, 2013. 2. Entitlement to an initial disability rating in excess of 30 percent for glaucoma since March 16, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1969 to February 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the claim in February 2013; the requested development has been completed. FINDINGS OF FACT 1. Throughout the course of the appeal, corrected distant visual acuity has been no worse than 20/30 bilaterally, and no impairment of muscle function been demonstrated. 2. Prior to March 16, 2013, glaucoma was manifested by an average concentric contraction to 50 degrees in the left eye and to 45 degrees in the right eye. 3. Since March 16, 2013, glaucoma has been manifested by an average concentric contraction to 34 degrees in the left eye and to 45 degrees in the right eye. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 20 percent for glaucoma prior to March 16, 2013 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.84a, Diagnostic Code 6013-6080 (effective prior to October 23, 2008). 2. The criteria for an initial disability evaluation of 30 percent, but no higher, for glaucoma since March 16, 2013, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.84a, Diagnostic Code 6013-6080 (effective prior to October 23, 2008). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). It does not appear that proper VCAA notice was given prior to the favorable adjudication of the Veteran's claim for service connection for glaucoma in December 2005. However, when service connection has been granted and the initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice unnecessary because the purpose that the notice was intended to serve has been fulfilled. Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision regarding the effective date of the rating assigned does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board notes, however, that the Veteran was informed of the evidence needed to substantiate a claim for a higher rating in October 2006. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service records and VA medical records have been obtained. The Veteran has not identified any private medical records which are pertinent to the appeal, nor has he indicated that he receives disability benefits from the Social Security Administration. The Veteran was afforded VA eye examinations in October 2006, May 2010, December 2010, February 2012 and March 2013. Although the 2010 and 2012 examinations are inadequate for rating purposes, the most recent examination report in February 2013 appropriately documents the findings necessary to determine the appropriate rating for the Veteran's glaucoma, and thus it is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not identified any additional evidence pertinent to the claim. As there are no additional records to obtain, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Evidentiary Standards Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). Rating Glaucoma Service connection for open angle glaucoma was granted by rating decision dated December 2005, and a noncompensable disability evaluation was assigned pursuant to Diagnostic Code 6013-6080, for glaucoma with visual field loss, effective from the date of the filing of the claim for service connection. The Veteran appealed the assigned rating. By a December 2006 rating decision, the initial evaluation for glaucoma was increased to 20 percent, effective from the date of the award of service connection. During the pendency of the appeal, the criteria for rating eye disabilities changed. As the Veteran filed his claim prior to December 10, 2008, the appeal will be considered under the prior rating criteria. 73 Fed. Reg. 66543 (Nov. 10, 2008). Diagnostic Code 6013 states that glaucoma is to be evaluated based on loss of visual acuity or visual field loss. For VA purposes, the severity of impaired central visual acuity is determined by comparing visual test results on the Snellen index with the criteria set forth in 38 C.F.R. § 4.84(a), Diagnostic Codes 6061 to 6079. A 10 percent disability rating is warranted for visual acuity where the vision is 20/50 in one eye and 20/50 in the other eye; or where vision is 20/40 in one eye and 20/50 in the other; or where vision is 20/70 in one and 20/40 in the other. A 20 percent disability rating is warranted for visual acuity where the vision is 20/70 in one eye and 20/50 in the other; or where vision is 20/100 in one eye and 20/50 in the other; or where vision is 20/200 in one and 20/40 in the other; or where vision is 15/200 in one eye and 20/40 in the other. Codes 6077, 6078. The Veteran has had numerous evaluations of his visual acuity during the course of the appeal. Visual acuity worse than 20/30 has not been observed in either eye. Thus, a rating in excess of 20 percent for loss of visual acuity is not warranted. Diagnostic Code 6080 states that a 20 percent rating is warranted for a bilateral visual field concentric contraction to 60 degrees but not to 45 degrees. A 20 percent rating is also warranted when there is a bilateral loss of the nasal half of the visual field. A 30 percent rating is warranted for a bilateral visual field concentric contraction to 45 degrees but not to 30 degrees. A 30 percent rating is warranted when there is a bilateral loss of the temporal half of the visual field or for homonymous hemianopsia. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2007). The extent of contraction of the visual field in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The results of field of vision testing must be recorded on a standard visual field chart, which must be included with each examination. 38 C.F.R. § 4.76 (2007). The number of degrees lost is determined at each meridian by subtracting the remaining degrees for the normal visual fields in Table III. The degrees lost are then added together and divided by eight. The result represents the average concentric contraction of the visual field in degrees. 38 C.F.R. § 4.76a (2007). The normal visual field extent at the eight principal meridians is as follows: Temporally: 85 degrees Down temporally: 85 degrees Down: 65 degrees Down nasally: 50 degrees Nasally: 60 degrees Up nasally: 55 degrees Up: 45 degrees Up temporally: 55 degrees 38 C.F.R. § 4.76a, Table III (2007). Visual Field Loss Prior to March 13, 2013 The Veteran underwent a VA eye examination in October 2006. He reported distorted vision and visual field defects, but denied decreased vision, blurred vision, double vision, and all other visual complaints. His visual field was within normal limits on confrontation visual testing. A Goldmann perimetry chart, however, showed visual field deficits as follows: Left Eye Meridians Normal Visual Field (in degrees): Veteran's Visual Field (in degrees): Temporally 85 50 Down temporally 85 55 Down 65 65 Down Nasally 50 50 Nasally 60 60 Up Nasally 55 45 Up 45 40 Up Temporally 55 40 The visual field of each of the 8 principal meridians in the Veteran's left eye adds up to 405 degrees. When 405 is divided by 8, the result is 50.625. Thus, the average concentric contraction of the visual field in the Veteran's left eye was approximately 50 degrees. Right Eye Meridians Normal Visual Field (in degrees): Veteran's Visual Field (in degrees): Temporally 85 60 Down temporally 85 70 Down 65 60 Down Nasally 50 50 Nasally 60 45 Up Nasally 55 35 Up 45 20 Up Temporally 55 25 The visual field of each of the 8 principal meridians in the Veteran's right eye adds up to 365 degrees. When 365 is divided by 8, the result is 45.6. Thus, the average concentric contraction of the visual field in the Veteran's right eye was approximately 45 degrees. Diagnostic Code 6080 provides that a unilateral visual field contraction of 45 degrees is to be rated as 10 percent disabling, or, alternatively, as visual acuity of 20/70. Visual field contraction to 50 degrees is also to be rated as 10 percent disabling, or, alternatively, as visual acuity of 20/50. Ratings for central visual acuity impairment provide that when vision in one eye is 20/70 and 20/50 in the other eye, the appropriate disability evaluation is 20 percent. Thus, entitlement to an increased rating for visual field impairment is not shown by these examination findings. Higher ratings are available under other scenarios and Diagnostic Codes; however, there is no evidence of homonymous hemionopsia, loss of the temporal field of vision bilaterally, aphakia, diplopia, active conjunctivitis, tuberculosis of the eye, or congestive or inflammatory glaucoma which would warrant a rating in excess of 20 percent for glaucoma prior to March 16, 2013. The Veteran underwent a VA eye examination in May 2010, although Goldmann visual field testing was not accomplished until August 2010. However, the examiner did not include a Goldmann perimetry chart, nor did he provide the contraction of the visual fields at each of the eight principal meridians in degrees. Instead, he stated only that the Veteran had "severe visual field defect" 360 degrees in each eye, consistent with his history of glaucoma. It is unclear from the addendum whether the examiner meant that there was visual field deficit in all 360 degrees of the eye chart, or whether there was a visual field contraction to 360 degrees in each eye. Since the examiner's findings were ambiguous and did not include the Goldmann perimetry chart, the examination is inadequate for rating purposes. VA eye examinations also took place in December 2010 and February 2012; however, visual field testing was not accomplished in December 2010, and in February 2012, a Goldmann perimeter chart was "not available." The examiner did state that 24-2 Humphrey visual field testing showed "insignificant" visual field defect; however, in the absence of a chart showing visual field contraction at each of the eight principal meridians, the examination report is also inadequate for rating purposes. As the only adequate evidence of visual field defect prior to March 16, 2013, is the October 2006 VA examination report, which showed that the Veteran's visual field defect was ratable at 20 percent, an initial disability evaluation in excess of 20 percent prior to March 16, 2013 is not warranted. Since March 16, 2013 The Veteran underwent a VA eye examination on March 16, 2013. The Veteran's treatment regimen for his glaucoma was largely unchanged since his October 2006 examination. There was no diplopia or other impairment of muscle function. Goldmann visual field testing showed visual field deficits as follows: Left Eye Meridians Normal Visual Field (in degrees): Veteran's Visual Field (in degrees): Temporally 85 40 Down temporally 85 30 Down 65 40 Down Nasally 50 45 Nasally 60 50 Up Nasally 55 20 Up 45 20 Up Temporally 55 30 The visual field of each of the 8 principal meridians in the Veteran's left eye adds up to 275 degrees. When 275 is divided by 8, the result is 34.375. Thus, the average concentric contraction of the visual field in the Veteran's left eye was approximately 34 degrees. Right Eye Meridians Normal Visual Field (in degrees): Veteran's Visual Field (in degrees): Temporally 85 70 Down temporally 85 70 Down 65 50 Down Nasally 50 40 Nasally 60 40 Up Nasally 55 40 Up 45 25 Up Temporally 55 30 The visual field of each of the 8 principal meridians in the Veteran's left eye adds up to 365 degrees. When 365 is divided by 8, the result is 45.6. Thus, the average concentric contraction of the visual field in the Veteran's left eye was approximately 45 degrees. Diagnostic Code 6080 provides that a bilateral visual field contraction between 45 and 30 degrees is to be rated as 30 percent disabling, or, alternatively, as visual acuity in each eye of 20/70. Ratings for central visual acuity impairment provide that when vision in each eye is 20/70, the appropriate disability evaluation is 30 percent. Thus, entitlement to a disability evaluation of 30 percent since March 16, 2013, for visual field defect as a result of glaucoma is warranted. Examination showed no evidence of tuberculosis of the eye or congestive glaucoma, which would warrant a rating higher than 30 percent. There is also no evidence of a decrease in visual acuity that is so severe that entitlement to special monthly compensation should be considered. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's service-connected glaucoma is primarily manifested by contraction of the visual field bilaterally. His visual acuity is relatively unimpaired. Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the rating criteria encompass the manifestations of the Veteran's glaucoma. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. The assigned schedule rating is, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating Based on Individual Unemployability The Veteran does not expressly raise, and the record does not reasonably raise, a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). The Veteran's employment status is unclear; however, the Veteran has not alleged, nor does the evidence show, that he is unemployable as a result of his service-connected glaucoma. ORDER An initial rating higher than 20 percent for glaucoma prior to March 16, 2013, is denied. An initial rating of 30 percent, but no higher, for glaucoma since March 16, 2013, is allowed. ____________________________________________ George E. Guido, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs