Citation Nr: 1320096 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-28 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for impaired vision, left eye, as a result of herpes keratitis. 2. Entitlement to service connection for a disorder of the right eye. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to July 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board further notes that the Veteran was scheduled to testify before the undersigned in May 2013. However, the Veteran ultimately withdrew her request for a Board hearing prior to that date. The issue of entitlement to service connection for a disorder of the right eye is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. 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). FINDING OF FACT The Veteran's service-connected left eye disability results in visual impairment of the left eye with no more than light perception. CONCLUSION OF LAW The criteria for a rating greater than 30 percent for a service-connected left eye disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.103, 3.321, 3.383(a)(1), 4.3, 4.75(c)(d), 4.76(b), 4.79, Diagnostic Code 6064 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in March 2011 of the criteria for establishing a rating increase, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in May 2011. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. As for the duty to assist, the Veteran's service treatment records have been obtained. Pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board therefore finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was afforded a VA examination to address her claim in May 2011. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report is adequate to decide the claim addressed in this section, as the report included a thorough review of the file, as well as examination findings relevant to the issue at hand. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating The Veteran claims that her currently-service-connected vision disorder is more severe than indicated by her current disability rating of 30 percent. The Board points out that disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. In this case, the evidence of record does not establish an additional, distinct time period in which the issue on appeal resulted in symptoms that warrant a staged rating. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2012). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of her earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 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. See 38 C.F.R. § 4.7 (2012). The Veteran's service-connected left eye disability has been evaluated on the basis of impaired visual acuity. She was initially granted service connection for her left eye disability by a February 1977 rating decision, and a 30 percent evaluation was assigned. As noted, the Veteran asserts that her service-connected left eye disability is more disabling than currently-rated, and a rating in excess of 30 percent is warranted. Under the current criteria, the Veteran's left eye disability is rated based on visual impairment or incapacitating episodes, whichever results in a higher evaluation. An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, General Rating Formula for Diagnostic Codes 6000 through 6009 (2012). In the present appeal, there is no evidence, and the Veteran does not contend, that she has experienced an incapacitating episode and thus further inquiry as to whether an increased rating is warranted based on incapacitating episodes is not required. Diagnostic Code 6064, under which the Veteran is currently rated, establishes that impairment of central visual acuity, manifested by no more than light perception in one eye (applicable in the present appeal), provides a minimum 30 percent rating for no more than light perception in one eye and 20/40 vision in the other eye. A 40 percent rating is warranted for 20/50 vision in the other eye, a 50 percent rating for 20/70 vision in the other eye, a 60 percent rating for 20/100 vision in the other eye, a 70 percent rating for 20/200 vision in the other eye, a 80 percent rating for 15/200 vision in the other eye, a 90 percent rating for 10/200 vision in the other eye, and a total evaluation for 5/200 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6064. Impairment of visual acuity is determined based on the best distant vision obtainable. 38 C.F.R. § 4.76(b). When only one eye is service-connected, as is the case here and subject to the provisions of 38 C.F.R. § 3.383(a), the visual acuity of the other eye will be considered to be 20/40 for the purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). The maximum evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. The evaluation for visual impairment may be combined with evaluations for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). 38 C.F.R. § 4.75(d). Under 38 C.F.R. § 3.383(a)(1), compensation is payable for the combinations of service-connected and non-service-connected disabilities, as if both disabilities were service-connected, provided the non-service-connected disability is not the result of the Veteran's own willful misconduct. With respect to the eyes, this applies when there is impairment of vision in one eye as a result of service-connected disability, and impairment of vision in the other eye as a result of nonservice-connected disability, and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. 38 C.F.R. § 3.383(a)(1). On VA examination in May 2011, the examiner noted a history of impaired vision due to herpes keratitis, left eye. The Veteran complained of redness, swelling, burning, stinging, watering, and the lack of vision. She reported that the condition had progressively worsened, and that she treated it with eye drops. Continuous medication, however, was not required, and there were no side effects from treatment. There was no history of trauma, eye neoplasm, or incapacitating period due to eye disease. A corneal transplant procedure was attempted on three occasions, each unsuccessfully due to graft failure. Cataract surgery was performed on the right eye, but not the left. Following an examination, the examiner did not find diplopia. A visual field defect was noted in the left eye (scotoma), with no peripheral visual field. There was no scotoma present in the right eye. Central visual acuity was less than 5/200, with only light perception in the left eye. The best corrected readings for the right eye were 20/80 (far) and 20/100 (near). Slit lamp findings were abnormal for the left eye, though the lens itself was intact with no other abnormality. The Veteran was ultimately diagnosed with a corneal transplant graft failure (three procedures), and recurrent herpetic ocular infection, left eye. While private medical records were also reviewed, there is no indication that the visual acuity, for either eye, was worse than documented in the VA examination report. In the present appeal, the VA examiner confirmed that the Veteran's service-connected left eye has light perception only, and that the right eye's visual acuity is greater than 20/200. As such, there is no evidence of impairment of vision in each eye rated at a visual acuity of 20/200 or less or peripheral field of vision for each eye of 20 degrees or less, and as such 38 C.F.R. § 3.383(a)(1) does not apply. Thus, the acuity of the Veteran's right eye will be considered to be 20/40 for the purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). In so doing, only the current 30 percent rating is warranted. 38 C.F.R. § 4.79, Diagnostic Code 6064. Further, there is no anatomical loss of the eye, and the Veteran's 30 percent rating is the maximum available for visual impairment of one eye. 38 C.F.R. § 4.75(d). Diagnostic Code 6064 also calls for consideration of special monthly compensation (SMC). See 38 C.F.R. § 4.79, Diagnostic Code 6064 (Note 1). In the Veteran's case, however, she has already been awarded SMC, based on loss of use of one eye (having light perception only) effective October 7, 1976. Turning to other potentially-applicable codes, the Board notes that Diagnostic Code 6013 contemplates open-angle glaucoma. This code provides a minimum 10 percent evaluation if continuous medication is used and directs the rater to evaluate glaucoma based on visual impairment. 38 C.F.R. § 4.79, Diagnostic Code 6013. In the present appeal, the Veteran's left eye disability is indeed evaluated on the basis of her visual impairment, however there is no indication that her disability has a glaucoma component. Further, as she is in already in receipt of a 30 percent rating for her left eye disability, more than the 10 percent minimum evaluation under Diagnostic Code 6013, this code may not serve as a basis for an increased rating. Also, DC 6027 contemplates cataracts of any type, preoperative or postoperative, though the Veteran's left eye disability has not been captioned to include a cataract component. Here, cataract surgery was performed on the right eye only. Also not applicable is a rating based on aphakia per Diagnostic Code 6029. Therefore, these codes may thus not serve as bases for an increased rating in the present appeal. In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of her service-connected vision symptoms. In this regard, the Veteran is competent to report on factual matters of which she has first-hand knowledge, e.g., experiencing blurred vision or only light perception. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds the objective medical findings and opinions provided by the VA examiner of record is afforded the greater probative weight. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of her disability have been accurately reflected by the schedular criteria. The Veteran's disability is productive of loss of vision in the left eye, with light perception only. She is deemed to have no vision in her left eye and is in receipt of the maximum rating available for one eye, with SMC based on this disability. Further, the Board points out that her disability rating encompasses a degree of occupational impairment relative to that rating. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In light of the foregoing, the Board finds that an evaluation in excess of 30 percent for the Veteran's decrease in visual acuity is not warranted at this time. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the Veteran's claim for an increase, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for impaired vision, as a result of herpes keratitis, is denied. REMAND The issue of entitlement to service connection for a disorder of the right eye must remanded for the issuance of a statement of the case (SOC). While this issue was addressed in an SOC dated March 22, 2012, the Board notes that the SOC was sent to the wrong address. In that decision, the Veteran's denial of service connection for a disorder of the right eye was continued, originally denied by the RO in January 2012. Because this decision was mailed to the wrong address, the issue of entitlement to service connection for a disorder of the right eye has not been properly addressed by the RO in a statement of the case. Under these circumstances, an updated SOC should be issued to address the Veteran's claim, to be sent to the correct address as noted in the claims file. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board is required to remand, rather than refer, this issue. Id. Accordingly, this matter is REMANDED for the following action: The RO/AMC shall issue a Statement of the Case (SOC) for the issue of entitlement to service connection for a disorder of the right eye, to be sent to the correct address as noted within the record. Only if the Veteran perfects an appeal should the claim be certified to the Board. 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). 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). ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs