Citation Nr: 1325722	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  07-13 524	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in San Diego, California


THE ISSUE

Entitlement to a rating in excess of 10 percent for pseudotumor cerebri with vision problems prior to March 22, 2006.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active service from May 1994 to May 1999.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision issued by the RO.

In February 2011, the Board remanded this matter for additional development.  The matter has been returned to the Board for additional appellate consideration. 

In May 2006, the RO increased the rating for the Veteran's pseudotumor cerebri with vision problems to 20 percent, effective March 22, 2006 (date of the VA examination).  In a statement received in June 2006, the Veteran expressed satisfaction with the assigned, increased 20 percent rating but expressed dissatisfaction with the effective date of the increased rating.  Given this statement, the Board finds that the question of entitlement to a rating in excess of 20 percent is not before the Board. Accordingly, the Board finds that the issue on appeal is most appropriately characterized as entitlement to an increased rating in excess of 10 percent prior to March 2006 as reflected on the title page, to be discussed herein below.  

The Board is aware that the issues of entitlement to increased ratings for both the pseudotumor cerebri with headaches and the left knee disability were perfected for appeal.  However, in the statement received in June 2006, the Veteran expressly withdrew these issues from appellate consideration.  Therefore, these issues are not currently before the Board on appeal.  38 C.F.R. § 20.204 (2012).

The issues of: (1) whether new and material evidence has been received to reopen claims for entitlement to service connection for irritable bowel disease/gastroesophageal reflux disease (GERD) and a back disorder, (2) entitlement to service connection for tinnitus and (3) entitlement to a rating in excess of 30 percent for pseudotumor cerebri with headaches have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 


FINDING OF FACT

Symptoms of the pseudotumor cerebri with vision problems most nearly approximated concentric contraction of the visual field of the eyes bilaterally to 60 degrees but not to 45 degrees prior to March 22, 2006.  


CONCLUSION OF LAW

The criteria for a 20 percent rating for pseudotumor cerebri with vision problems prior to March 22, 2006 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.124a, Diagnostic Code (DC) 8003 (2012); 4.79 DC 6080 (2006).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121.

In this case, in a March 2006 letter issued subsequent to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A corresponding March 2006 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, as this appeal stems from the initial grant of service connection for pseudotumor cerebri, the notice letter did not contain an explanation of the general rating criteria relevant to her pseudotumor cerebri with vision problems.

The April 2003 Statement of the Case (SOC) set forth applicable criteria for rating pseudotumor cerebri with vision problems and the February 2012 Supplemental Statement of the Case (SSOC) readjudicated the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, VA treatment records and examination reports.    

The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Laws and Regulations

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

The Court has held that "staged" ratings are appropriate for any 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); Fenderson v. West, 12Vet. App 119 (1999).  Here the disability has not significantly changed and a uniform evaluation is warranted.

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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7. 

Historically, the Veteran's pseudotumor cerebri was rated analogous to the provisions of 38 C.F.R. §  4.124a, Diagnostic Code (DC) 8003.  Under DC 8003, a minimum 60 percent rating is assigned for benign new growth of the brain. Otherwise, residuals are rated according to the appropriate rating criteria, with a minimum rating of 10 percent. 38 C.F.R. § 4.124a, DC 8003.

For purposes of this current appeal, the Veteran's pseudotumor cerebri with vision problems is rated pursuant to 38 C.F.R. §§ 4.84a, 4.124a, DC 8003-6080. The use of the hyphenated code reflects that the Veteran's pseudotumor cerebri is rated pursuant to DC 8003 (benign new growth of the brain) and that the rating assigned is based on impairment of the visual field pursuant to DC 6080. See 38 C.F.R. § 4.27. 

The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field 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 Table III. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 represents the average contraction for rating purposes. 38 C.F.R. § 4.76a .

While the appeal was pending, the rating schedule for evaluating disabilities of the eyes was revised and amended. See 73 Fed. Reg. 66543 -54 (Nov. 10, 2008). The effective date of the revisions is December 10, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. Because the Veteran's claim was received prior to December 10, 2008, the revised criteria are not for application in his case.

Under the criteria, a 10 percent rating is warranted for (a) concentric contraction of visual field to 60 degrees but not to 45 degrees unilaterally; (b) concentric contraction of visual field to 45 degrees but not to 30 degrees unilaterally; (c) concentric contraction of visual field to 30 degrees but not to 15 degrees unilaterally; (d) loss of nasal half of visual field unilaterally; or (e) loss of temporal half of vision field unilaterally. 38 C.F.R. § 4.84a, DC 6080 (2008). 

A 20 percent rating is warranted for (a) concentric contraction of visual field to 60 degrees, but not to 45 degrees bilaterally; (b) concentric contraction of visual field to 15 degrees, but not to 5 degrees unilaterally; or (c) loss of nasal half of visual field bilaterally. Id.

A 30 percent rating is warranted for (a) concentric contraction of visual field to 45 degrees, but not to 30 degrees bilaterally; (b) concentric contraction of visual field to 5 degrees unilaterally; (c) loss of temporal half of visual field bilaterally; or (d) homonymous hemianopsia impairment of field vision. Id.

A 50 percent rating is warranted for concentric contraction of visual field to 30 degrees but not to 15 degrees bilaterally. A 70 percent rating is warranted for concentric contraction of visual field to 15 degrees but not to 5 degrees. A 100 percent rating is warranted for concentric contraction of visual field to 5 degrees. Id.

Analysis
 
The Board finds that the medical and lay evidence reflects that the Veteran's pseudotumor cerebri with vision problems warrants increase to a 20 percent rating, prior to March 22, 2006. The Board finds that the level of severity of the Veteran's pseudotumor cerebri with vision problems did not significantly change during the course of the pertinent appeal period.  

The September 2000 VA examination documents, in pertinent part, that average concentric contraction of the visual field of the right eye is 59 degrees and the average concentric contraction of the visual field of the left eye is 55 degrees. The May 2001 VA examination reflects, in pertinent part, that average concentric contraction of the visual field of the right eye is 60 degrees and the average concentric contraction of the visual field of the left eye is 54 degrees. The February 2003 VA examination documents, in pertinent part, that average concentric contraction of the visual field of the right eye is 60 degrees and the average concentric contraction of the visual field of the left eye is 55 degrees. The March 2006 VA examination documents, in pertinent part, that average concentric contraction of the visual field of the right eye is 56 degrees and the average concentric contraction of the visual field of the left eye is 50 degrees. Accordingly, the Board finds that the Veteran's pseudotumor cerebri with vision problems most nearly approximates concentric contraction of the visual field to 60 degrees but not to 45 degrees bilaterally.  In light of the competent and credible lay evidence, we are not convinced that the appellant became worse on the day of an adequate VA examination.  Therefore, her pseudotumor cerebri with vision problems warrants a 20 percent rating prior to March 22, 2006.  In this regard, the Veteran's claim is granted.

As noted in the introduction, the Veteran expressed satisfaction with the assigned 20 percent rating; accordingly, entitlement to a rating in excess of 20 percent is not currently before the Board on appeal. Nevertheless, as concentric contraction of the visual field to 45 degrees but not to 30 degrees bilaterally or to 5 degrees unilaterally, loss of temporal half of the visual field bilaterally and homonymous hemianopsia are not demonstrated, higher rating would not be warranted at any time.  Additionally, the Board notes that the May 2001 VA examination report reflects that diagnostic tests have consistently been negative for any intracranial or central nervous system tumor or mass. In the May 2011 report of VA examination, the attending physician reported that there was no showing of any new growth of brain material and/or changes related to the Veteran's pseudotumor cerebri. Thus, the Board finds that the minimum 60 percent rating for benign new growth of the brain pursuant to 38 C.F.R. § 4.124a, DC 8003 would also not be warranted. 

For all the foregoing reasons, the Board finds that a 20 percent, but no higher, rating for pseudotumor cerebri with vision problems is warranted prior to March 22, 2006.  The Board has applied the benefit-of-the-doubt doctrine in determining that the criteria for 20 percent rating are met.  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).

The above determinations are based on application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point since the Veteran's claim for increase, has the disability been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis.  See 38 C.F.R. § 3.321.

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule 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' (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. § 3.321(b)(1).  If so, 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 extra-schedular rating.  Thun, 22 Vet. App. 111.

In this case, the Board finds that schedular criteria are adequate to rate the pseudotumor cerebri with vision problems under consideration.  To the extent that the Veteran complains of pseudotumor cerebri with vision problems that interferes with occupational functioning, it does not appear that her pseudotumor cerebri with vision problems symptoms "markedly" interfere with employment.  Accordingly, and because there is also no evidence that she has been hospitalized for her pseudotumor cerebri with vision problems at any time during the appeal period, the threshold requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

A 20 percent rating is granted for pseudotumor cerebri with vision problems, prior to March 22, 2006, subject to controlling regulations governing the payment of monetary awards.



____________________________________________
H. N. SCHWARTZ 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs