Citation Nr: 1322516 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 06-27 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of a left eye injury with peripheral retinal atrophic degeneration, temporally. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active military service from November 1977 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Seattle, Washington on behalf of the Roanoke, Virginia RO. The case has been transferred to the Chicago, Illinois RO. The September 2005 rating decision on appeal granted service connection for the disability at issue and assigned a noncompensable initial rating, effective from January 1, 2005. During the pendency of the appeal, a RO Decision Review Officer decision in July 2006 assigned a 10 percent initial rating for the disability at issue, effective from January 1, 2005. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). In August 2010, February 2012, and June 2012, the Board remanded the appeal for further development. It now returns to the Board for appellate review. FINDING OF FACT Throughout the rating period on appeal, the Veteran's left eye disability has been productive of complaints of achy pain in the left eye, as well as a black spot in his vision about the size of a fly, objectively tested visual acuity correctable to 20/20, and average concentric contraction of the visual field of 55 as revealed by Goldmann perimeter testing. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for residuals of a left eye injury with peripheral retinal atrophic degeneration, temporally have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14 (2009); 38 C.F.R. § 4.84a, Diagnostic Codes 6009-6080 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in August 2010, February 2012, and June 2012. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the August 2010 remand was to schedule a VA examination. The examination was scheduled for November 2010 and then rescheduled for August 2011, ostensibly because the Veteran failed to report for the November 2010 VA examination. Upon the Veteran's insistence that he was present at the VA examination in November 2010, the appeal was again remanded in both February 2012 and June 2012 so that the November 2010 VA examination report could be located. The Board observes that there are visual field examination charts from November 2010 of record, which were submitted by the Veteran, and which the August 2011 VA examination report indicates were also present in the paper chart. The examination report from November 2010, however, was not located and a formal finding as to the report's unavailability and the RO's unsuccessful efforts to obtain the report was made by the RO in March 2013. There is nothing that suggests that the November 2010 VA examination found that the disability was more severe than assessed in August 2011. Based on those facts, the Board determines that any subsequent efforts to obtain the November 2010 report would be fruitless and only serve to further delay adjudication of the claim without any benefit to the Veteran. 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 Veteran). Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the August 2010, February 2012, and June 2012 remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Veteran is appealing the initial rating assignment as to his left eye disability. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3) (2012). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher rating at any stage of the appeal period and citing the applicable statutes and regulations. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, VA medical records, and the reports of April 2005, January 2009, and August 2011 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claim. As discussed above, the November 2010 VA examination report is not available for review, except for the concomitant Goldmann test charts. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. The Board observes that the January 2009 VA examiner did not provide results from visual field testing, which is essential to rating the Veteran's left eye disability; thus that examination is adequate. However, the results of the April 2005 and August 2011 VA examinations supplied information sufficient in detail and relevance to the rating criteria, including visual field testing, to allow for determination of the appropriate disability rating. The Board acknowledges that none of the VA examiners reviewed the claims file. However, this fact alone does not render that examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In an initial rating claim, it is the current medical findings that are most salient. Moreover, nothing suggests that any examiner documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology. Therefore, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini, 1 Vet. App. at 546. Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. 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). Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. The Veteran's left eye disability has been rated as 10 percent disabling for the entire appeal period pursuant to 38 C.F.R. § 4.84a, Diagnostic Codes 6009-6080 for an unhealed eye injury resulting in a visual field defect. Parenthetically, the Board must note that the rating criteria for diseases of the eye were amended effective December 10, 2008, and are applied to all applications for benefits received by VA on or after December 10, 2008. 73 Fed. Reg. 66550 (Nov. 10, 2008). As the Veteran filed his claim in February 2005, the rating criteria in effect prior to December 10, 2008 are applicable to the claim. The Board notes for clarity, however, that the December 2008 amendments included a rearrangement of some substantive criteria including that for Diagnostic Codes 6009 and 6080, which ultimately eliminated 38 C.F.R. § 4.84a (2007). The current versions of Diagnostic Codes 6009 and 6080 are located in 38 C.F.R. § 4.79 (2012). Under the pre-revision rating schedule, disabilities rated under Diagnostic Code 6009 were to be evaluated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. The minimum rating during active pathology is 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6009 (2007). The applicable requirements for an examination regarding the Veteran's field of vision were articulated under 38 C.F.R. § 4.76 (2007). Specifically, measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. The usual perimetric methods will be employed, using a standard perimeter and 3m. white test object. At least 16 meridians 22.5 degrees apart will be charted for each eye. See 38 C.F.R. § 4.76a, Figure 1. The charts will be made a part of the report of examination. Not less than two recordings, and when possible 3 will be made. 38 C.F.R. § 4.76 (2007). According to the Rating Schedule, the extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields 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 38 C.F.R. § 4.76a, Table III (2007). The degrees lost are then added together to determine total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by eight represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2007). The normal visual field extent at the 8 principal meridians is 85 degrees temporally, 85 degrees down temporally, 65 degrees down, 50 degrees down nasally, 60 degrees nasally, 55 degrees up nasally, 45 degrees up and 55 degrees up temporally. The normal total is 500 degrees. Id. at Table III. Under Diagnostic Code 6080, unilateral visual field impairment is assigned a 10 percent rating for concentric contraction of the visual field to 60 degrees, but not to 45 degrees; concentric contraction to 45 degrees, but not to 30 degrees; concentric contraction of the visual field to 30 degrees, but not to 15 degrees; loss of the nasal half of the visual field; or loss of the temporal half of the visual field. A 20 percent rating is assigned for unilateral concentric contraction of the visual field to 15 degrees, but not to 5 degrees, and a 30 percent rating is assigned for unilateral concentric contraction of the visual field of 5 degrees. Higher ratings are assigned only for bilateral loss of visual field. 38 C.F.R. § 4.84a, Diagnostic Code 6080. Diagnostic Code 6080 also provides that loss of temporal half of visual field may be rated as 20/70 visual acuity and loss of nasal half of visual field may be rated as 20/50 visual acuity. Concentric contraction of the visual field to 60 degrees, but not to 45 degrees may be rated as 20/50 visual acuity; concentric contraction to 45 degrees, but not to 30 degrees may be rated as 20/70 visual acuity; concentric contraction of the visual field to 30 degrees, but not to15 degrees may be rated as 20/100 visual acuity; concentric contraction of the visual field to 15 degrees, but not to 5 degrees may be rated as 20/200 visual acuity, and concentric contraction of the visual field of 5 degrees may be rated as 5/200 visual acuity. NOTE (1): Correct diagnosis reflecting disease or injury should be cited. NOTE (2): Demonstrable pathology commensurate with the functional loss will be required. The concentric contraction ratings 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 a 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. Entitlement on account of blindness requiring regular aid and attendance, § 3.350(c) of this chapter, will continue to be determined on the facts in the individual case. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2007). The Veteran was afforded three VA examinations during the appeal period. The record does not reflect that he seeks treatment for his service-connected eye disability. At the April 2005 VA examination, the Veteran had uncorrected visual acuity of 20/70+ in the right eye and 20/400 in the left eye. Corrected, his vision was 20/20 -2 at far in the right eye and 20/20 at near. In the left eye, corrected vision was 20/20 -1 at far and 20/20 at near. Pupils were round and reactive with no afferent papillary defect. The Veteran had full extraocular movement and intact color vision. Slit lamp examination revealed no abnormalities of the lids, conjunctiva, cornea, anterior chamber, iris, or lens. Intraocular pressure of each eye was 16 mmHg at 8:30 am. There were vitreous floaters and peripheral retinal temporal atrophic degeneration in the left eye, as well as refractive error (myopic presbyopia) in both eyes. The examiner stated that the Goldmann perimeter test revealed full visual field. However, a review of the April 2005 perimeter field test chart for the left eye shows that the Veteran's visual field was 75 degrees temporally, 72 degrees down temporally, 53 degrees down, 50 degrees down nasally, 48 degrees nasally, 45 degrees up nasally, 42 degrees up, and 58 degrees up temporally. The total remaining visual field when these numbers were subtracted from the normal visual field as stated in 38 C.F.R. §4.76a, table III was 443 degrees, resulting in an average concentric contraction of the visual field of 55. At a January 2009 VA examination, the Veteran complained of having achy pain in the left eye, as well as a black spot in his vision about the size of a fly. Corrected visual acuity in both eyes was 20/20, both at distance and near. Pupils were both direct and consensual without afferent pupilary defect. Extraocular muscles had full range of function, and confrontation fields were full to finger counting. Slit lamp evaluation revealed no defects in lids/lashes, conjunctiva, cornea, anterior chamber, and iris. Intraocular pressure was 18 mmhg at 11:07 am. The examiner noted vitreous syneresis in the left eye. The examiner diagnosed angle recession in the left eye without evidence of glaucoma and vitreal degeneration of the left eye, both as a result of the trauma in military service. However, no visual field testing was performed, and therefore, no Goldmann charts accompanied this examination. At an August 2011 VA examination, the Veteran's subjective complaints were as documented in January 2009. His uncorrected visual acuity in the right eye was 20/25 at distance and 20/60 at near and in the left eye was 20/100 at distance and 20/20 at near. Corrected visual acuity was 20/20 at distance and near in both eyes. Pupils were both direct and consensual without afferent pupilary defect. Extraocular muscles had full range of function, and confrontation fields were full to finger counting. Slit lamp evaluation revealed no defects in lids/lashes, conjunctiva, cornea, anterior chamber, and iris. Intraocular pressure was 14 mmhg at 9:28 am. The examiner noted vitreous syneresis/floaters in the left eye. The diagnoses of angle recession in the left eye without evidence of glaucoma and vitreal degeneration of the left eye were continued. Additionally, the examiner indicated that there was slight impairment of superior nasal visions in the left eye by Goldmann testing in November 2010. However, the November 2010 Goldmann chart of the left eye reveals that the Veteran had visual field of 70 degrees temporally, 80 degrees down temporally, 65 degrees down, 50 degrees down nasally, 50 degrees nasally, 30 degrees up nasally, 30 degrees up, and 60 degrees up temporally. Subtracting these figures from the normal visual field numbers presented in 38 C.F.R. § 4.76a, Table III, the remaining visual field is 445 degrees. Average concentric contraction of the visual field, therefore, was still 55. Based on the above, the Veteran's average loss of visual field is to 60 but not to 45 degrees, which warrants a 10 percent rating. A higher rating is not appropriate for loss of visual field without unilateral loss of visual field to 15 degrees or when visual field loss exists in both eyes and is service-connected. Here, only the left eye is service-connected, and the right eye is considered normal for rating purposes. The Veteran has been diagnosed with refractive error in both eyes, and the Veteran has contended that his left eye vision loss is worse than in his right eye because of the in-service injury. While the Veteran's disability may be rated under the criteria for visual acuity of 20/50 pursuant to Diagnostic Code 6080, such would not afford him a higher rating. Moreover, his corrected visual acuity in each eye has remained at 20/20 throughout the appeal period. Therefore, the loss of visual acuity does not warrant a higher rating. Moreover, Diagnostic Codes 6009 and 6080 provide that the disability should be rated for visual acuity or loss of visual field. For these reasons, the Board determines that a rating for loss of visual acuity is not appropriate in this case. Even if the provisions of 38 C.F.R. § 4.79, Diagnostic Codes 6009 and 6080, effective from December 10, 2008, are considered with regard to the clinical findings reported thereafter, a higher rating than 10 percent is still not warranted. Under Diagnostic Code 6080, as amended, unilateral concentric contraction of the visual field with remaining visual field of 46 to 60 degrees warrants a 10 percent rating. Such unilateral concentric contraction may also be rated as 20/50 visual acuity. Such visual acuity, when considered with normal nonservice-connected right eye visual acuity also does not warrant a rating in excess of 10 percent. Additionally, as noted above, the Veteran's corrected visual acuity in each eye has remained at 20/20 throughout the appeal period. The Board has also considered the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (2012), as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges the Veteran's complaints of pain in the left eye, and that he is competent to report such symptoms. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board further notes that the Veteran has been diagnosed with vitreous syneresis, which has been associated with his eye injury. However, the Board finds that the record does not demonstrate rest-requirements, episodic incapacity, or active pathology. Although the Veteran complained of achy pain at both the January 2009 and August 2011 VA examinations, the pain and floaters were not reported to result in functional limitations. The Veteran has not asserted that he was required to rest due to the pain, nor has such a requirement been prescribed by a physician. 38 C.F.R. § 4.84a, Diagnostic Code 6009. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the competent evidence does not support a higher rating for his residuals of left eye injury, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for this disability. Thus, the benefit of the doubt doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to an initial rating in excess of 10 percent for residuals of a left eye injury with peripheral retinal atrophic degeneration, temporally is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs