Citation Nr: 1323985 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-50 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial increased rating for diabetic retinopathy, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating based upon individual unemployability based upon service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for diabetic retinopathy, and awarded a 10 percent rating, effective August 2007. Jurisdiction now lies with the Salt Lake City, Utah RO. The issue of entitlement to bilateral cataracts, secondary to diabetes mellitus, type II 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. 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). The issue of entitlement to TDIU addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected diabetic retinopathy is manifest by corrected distant vision of no less than 20/50 in the right eye, and 20/40 in the left eye. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.75, 4.84a, Diagnostic Code 6079 (2008) (as in effect prior to the December 10, 2008 revision). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board notes that where service connection has been granted and an initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dunlap v. Nicholson, 21 Vet.App. 112 (2007); Goodwin v. Peake, 22 Vet.App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseski 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. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records, private treatment records, and VA treatment records, to include records associated with Virtual VA, with the claims file. No outstanding evidence has been identified. The Veteran was afforded VA examinations in March 2009, August 2012, and April 2013. The Board finds the VA examination reports were thorough and adequate upon which to base a decision with regard to the Veteran's diabetic retinopathy claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. Further, the Veteran was provided an opportunity to set forth his contentions at a hearing before the Board. The hearing was scheduled for June 2013, and prior to the hearing, the Veteran withdrew his hearing request. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet.App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). Initial Increased Rating-Diabetic Retinopathy The Veteran asserts that his diabetic retinopathy is more severe than currently rated. He claimed that he had mild diabetic retinopathy which has now been determined to be moderate in degree. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). When the appeal arises from an initial rating, as in this case, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet.App. 119 (1999). Staged ratings are also appropriate in increased- rating claims in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet.App. 505 (2007). When an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet.App. 55 (1994). By rating decision of March 2008, service connection for diabetic retinopathy was granted. Diabetic retinopathy was awarded a 10 percent rating, effective August 2007. A 10 percent rating has been effective since that date. As an initial matter, the portion of the rating schedule that addresses disabilities of the eyes was revised effective December 10, 2008. Only claims received on or after December 10, 2008 will be evaluated under the new criteria. 73 Fed. Reg. 66543 -54 (Nov. 10, 2008). The Veteran's claim was received prior to December 10, 2008 and therefore, the revised regulations are not for application. The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. § 4.75 (2008). The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a (2008). A 10 percent rating is warranted for visual acuity where the vision was 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. Diagnostic Codes 6078, 6079. In January 2007, the Veteran was seen by J.J.N., MD, at the Medical College of Georgia. Dr. J.J.N. indicated that he had followed the Veteran for diabetic retinopathy for a number of years but he had not seen him in quite a number of years. His evaluation revealed moderate nonproliferative diabetic retinopathy which had progressed somewhat from the description of the evaluation performed in 2000. Best corrected visual acuity at the time of the examination was noted to 20/25 in both eyes. In March 2009, the Veteran underwent an examination for VA contract purposes. His corrected distance acuity was 20/30 in the right eye and 20/40 in the left eye. Dilated fundus examination did not show diabetic retinopathy in either eye. He did have cataracts which the examiner stated were most likely due to diabetes mellitus. Minimal diabetic retinopathy was also diagnosed. The Veteran underwent a VA examination in August 2012. The Veteran complained that he had diabetes mellitus for many years and he had been followed for diabetic retinopathy. He believed his vision had worsened. Corrected distance acuity was 20/40 or better in both eyes. The pertinent diagnosis was moderate nonproliferative diabetic retinopathy. In April 2013, the Veteran underwent a VA examination. The Veteran's corrected distance acuity was 20/50 in the right eye and 20/40 or better in the left eye. There was no visual field defect. The examiner stated that the decrease in the Veteran's visual acuity was not due to diabetic retinopathy. In summary, the Veteran's corrected distance vision is shown to be no less than 20/50 for the right eye, and 20/40 for the left eye. Accordingly, the criteria for an initial rating in excess of 10 percent for diabetic retinopathy have not been met. See 38 C.F.R. §§ 4.75, 4.84a, Diagnostic Codes 6078, 6079. The Board has considered the Veteran's statements that his diabetic retinopathy is worse. He asserted, in essence, that he warrants an increased rating for his diabetic retinopathy disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet.App. 67, 74 (1997); Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet.App. at 470. However, the Veteran has not been shown to possess the competence to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence-concerning the nature and extent of the Veteran's diabetic retinopathy has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the Veteran's diabetic retinopathy disability is evaluated. The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet.App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet.App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2011), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." Id. The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet.App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The evaluation of the Veteran's diabetic retinopathy was applied to the applicable rating criteria and case law. Although the applicable criteria provide for higher ratings, the Board fully explained why the higher ratings were not warranted throughout. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's diabetic retinopathy includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet.App. at 11 ; see also Bagwell v. Brown, 9 Vet.App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet.App. 88, 96 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER An initial increased rating in excess of 10 percent for diabetic retinopathy is denied. REMAND Further development is necessary in this case. It has been alleged that the Veteran is unable to work as a result of his service-connected low disabilities. (April 2012 informal claim and letter from his private physician) In Rice v. Shinseki, 22 Vet.App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Based on the evidence presented on the record, the Board finds that the issue of TDIU properly before the Board by virtue of his assertions and his claim for an increased rating for diabetic retinopathy pursuant to Rice. Having determined that the issue of TDIU is properly raised by the record, the Board finds that further development is necessary prior to adjudicating the claim. In this regard, the law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC will schedule the Veteran a comprehensive VA examination. The purpose of the examination to determine the current severity of all of the Veteran's service-connected disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner must also provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected disabilities, alone or in the aggregate, result in impairment sufficient to make the Veteran unable to secure or follow substantially gainful employment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, must be made available to the examiner for review. The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected disabilities on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is, whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 2. Then, readjudicate the issue on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. The Veteran 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs