Citation Nr: 1330096	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  06-06 973A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an initial compensable rating for service-connected visual impairment of the left eye including astigmatism and a left cornea scar from December 20, 1973 to the present.

2.  Entitlement to total disability based on individual unemployability (TDIU)


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

M. H. Stubbs, Counsel


INTRODUCTION

The Veteran served on active duty from December 1971 to December 1973. 

This appeal arises before the Board of Veterans' Appeals  (Board) from a rating decision rendered in March 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma in which service connection for right facial muscle weakness and sensory loss was granted and evaluated as zero percent disabling.

In a March 2010 decision, the Board found that there was clear and unmistakable error in a February 1974 rating decision, and amended the decision to grant service connection for visual impairment of the left eye, including, but not limited to astigmatism of the left eye, effective December 20, 1973.  The Board remanded the issue of an initial rating for a left vision disability so that additional records could be obtained and the Veteran could be scheduled for a VA examination.  In August 2012 and April 2013, the Board remanded the claim so that the Veteran could receive information on visual ratings. 

The issue of entitlement to TDIU 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.

FINDINGS OF FACT

1.  Service connection is in effect for the left eye only.

2.  Incapacitating episodes, due to left eye decreased visual acuity, are not shown. 
3.  Left eye visual acuity approximated 20/30 (best distant vision, corrected, in accordance with 38 C.F.R. § 4.75).


CONCLUSION OF LAW

The criteria for an initial compensable initial rating for impaired visual acuity due to left eye astigmatism and cornea scar are not met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.75, 4.84a Diagnostic Code 6079 (effective prior to September 15, 1975); 38 C.F.R. § 4.75, 4.84a, Diagnostic Code 6079 (effective prior to December 10, 2008); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.75, 4.79, Diagnostic Codes 6036, 6064 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA must notify and assist claimants in substantiating claims for benefits.  38 U.S.C.A. §§ 5100, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  This claim stemmed from a finding of clear and unmistakable error in a 1974 rating decision.  Timely notice was given in February 2002, prior to the decision on appeal. 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, adequate notice was given in a May 2008 letter from the RO. 

VA also has a duty to assist the claimant in the development of the claim.  This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The claims file contains service treatment records, including the additional April 1973 records provided by the Veteran prior to the Board's 2010 decision, VA treatment records, and VA examination reports from 1995, 2002 and 2011.

All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA has obtained VA and private clinical records.  The claimant was afforded several VA ophthalmologic examinations.  Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained.  The Board has remanded the case for development.  When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this case, the AMC has complied with all remand orders.  The June 2013 Supplemental statement of the Case (SSOC) contained the rating criteria information for Diagnostic Code 6079, which has remained unchanged since 1973, and information on Diagnostic Code 6036, which was added in 2008.  Hence, no further notice or assistance to the claimant 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).

In January 2010, the Veteran testified at a personal hearing regarding his claim for an increased rating for right facial muscle weakness and sensory loss, as well as an earlier effective date for a 50 percent evaluation for facial scars.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the AVLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's intent with the claim interpreted as an earlier effective date claim.  The AVLJ noted that the Veteran was actually initiating a clear and unmistakable error claim, and addressed the element(s) of his claims, and suggested the submission of evidence that would be beneficial to the Veteran's claims.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  While this hearing did not specifically address the current initial compensable rating claim on appeal, it did address the clear and unmistakable error claim which granted separate entitlement to service connection for left eye astigmatism and cornea scar.

Laws and Regulations

Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  The  entire medical history is reviewed when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  38 C.F.R. § 4.2. 

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7. 

Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities.  A VA medical examination report must also include a "full description of the effects of disability upon the person's ordinary activity."  38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007). 

Additionally, if a Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then a total rating based on individual unemployability (TDIU) as a result of that disability must be considered.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, TDIU will be addressed in the REMAND section of this decision. 

The Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 

In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established.  The appeal in this case arises from a disagreement with the initial rating assigned.  Thus, the current appeal period begins with a claim for service connection, which, in this case, is December 20, 1973 (date of the initial grant of service connection from the 1974 rating decision which contained clear and unmistakable error).

The Board notes that during the pendency of the appeal, the applicable rating criteria for eye disabilities, found at 38 C.F.R. §§ 4.75 to 4.84a, were amended effective September 15, 1975 and December 10, 2008.  The December 2008 revisions are only applicable to applications for benefits received by the VA on or after December 20, 2008.  See 73 Fed. Reg. 66,543-66,554 (November 10, 2008).  However, as the current and former rating criteria were considered by the RO, the Board will also consider all criteria.

Diagnostic Code 6079 has not changed from 1973 onward.  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 6063to 6079 (1973, 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 (1973, 2008).  A table (Table V) was added in 1975.  The percentage evaluation was 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).  Diagnostic Code 6079 was also recorded as providing a noncompensable rating for correctable vision on one eye to 20/40, and correctable vision in the other eye to 20/40.  38 C.F.R. § 4.83a (1973, 2008).  

A 10 percent disability rating is warranted for impairment of central visual acuity when vision in one eye is correctable to 20/50 and vision in the other eye is correctable to 20/40.  38 C.F.R. § 4.84a, Diagnostic Code 6078 (1973, 2008).

Diagnostic Code 6009, for unhealed injury of the eye, in chronic form, are to be rated 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.  A minimum rating during active pathology is 10 percent.  38 C.F.R. § 4.84a, Diagnostic Code 6009 (1973, 2008).

Under the current 38 C.F.R. § 4.79, Diagnostic Code 6079 provided a noncompensable rating for correctable vision to 20/40 in both eyes, and a 10 percent rating for correctable vision to 20/50 in one eye, and correctable vision to 20/40 in the other.  Diagnostic Code 6036, which was not available in prior eye rating criteria, provides a minimum 10 percent rating for status post corneal transplant with pain, photophobia and glare sensitivity.  Otherwise, vision is to be rated based on visual impairment.

Factual Background and Analysis

By way of history, in April 1973 the Veteran was involved in a motor vehicle accident.  While the passenger in a vehicle involved in the accident, the front windshield shattered and the Veteran suffered severe facial lacerations.  Although it initially appeared that "the globes of his eyes were intact," when he awoke after facial surgery he noted blurred vision in his left eye.  Examination revealed a laceration to his left cornea.  It was surgically repaired.  It is noted that his wounds healed without evidence of infection despite persistent swelling and induration.  The Veteran was diagnosed with extensive lacerations of the face, perforating wound of the left maxillary antrum with injury of the left infra-orbital nerve, and laceration of the left cornea, requiring debridement and suture.  His disposition at discharge noted that his scars were red and many of them showed severe induration with considerable residual swelling. It was felt that plastic surgical revision of many of the scars would be desirable.

VA examination for vision conducted in January 1974 shows an impression of healed corneal laceration in the left eye with mixed astigmatism in the left eye secondary to the left corneal laceration.  His uncorrected left vision was 20/30+1.  His best corrected left vision was 20/20-1.  

In June 1995, the Veteran was afforded another VA eye examination.  He denied any ocular complaints other than trouble with visual acuity.  He reported his history of sutures to his left eye after a corneal laceration, however, he reported his vision "has been relatively normal since that time."  He reported his decreased visual acuity began in roughly 1994.  Physical evaluation revealed pupils without afferent pupillary defect, no diplopia, and no visual field deficit.  On slit lamp examination, the Veteran had a "small 3 to 4 mm old well-healed corneal laceration inferonasally with iris incarceration to the posterior wound."  The pupil was not distorted and the lens of the left eye was normal.  Visual acuity of the left eye was noted to be 20/40, however, the examiner did not indicate if this was corrected or uncorrected vision.  He was assessed with old corneal laceration with iris incarceration and emerging presbyopia.

A QTC examination from March 2002 noted the Veteran sought treatment for "some blurred vision in his left eye" in early March 2002.  He wore reading glasses.  He reported his 1973 left eye laceration, and denied any other eye injuries.  Without correction, his left visual acuity was 20/40.  With correction of -.50, his left eye distance vision was 20/30.  With a +1.50 add, his vision was 20/20 near in each eye.  Pupillary, ocular motility, external and fundus examinations were normal.  Slit lamp examination showed an inferonasal corneal scare with iris adhesion in the left eye.  He also had early cataract in the left eye.  Goldman visual field testing was normal.  

In July 2010, the Veteran sought treatment for "decreased near vision."  He was not currently wearing any eyeglasses, and he stated he was seeking a near prescription.  He declined bifocal prescription because he "doesn't have any distance problems."  He did report that his left eye vision has been weaker since a motor vehicle accident in 1973.  His left eye vision without correction was 20/40+, and with correction was 20/25-2.  Slit lamp examination revealed nonracial post-corneal scarring near the limbus inferonasaly with a small area of iris adhesion to the cornea where scarring is present.  A dilated fundus examination did not find abnormalities.  He was assessed with a corneal scar, astigmatism bilaterally, presbyopia, and early age-related cataracts.

In November 2010, the Veteran was afforded a VA examination in connection with his initial left corneal scar and astigmatism claim.  He reported blurred vision in his left eye without glasses.  He "only wears reading glasses."  He denied pain or other symptoms other than blurred vision.  His left distance vision was 20/40, and his near vision was 20/400 bilaterally.  His best corrected vision in his left eye was 20/25-2.  His best corrected vision in his right eye was 20/20-2.  He was noted to have a small endothelial scar infranasally, on the periphery (nonaxial).  The remainder of his eye examination was normal.  The examiner noted that the Veteran has a left peripheral corneal scar, which was not affecting his vision.

The Veteran has provided several well-informed statements concerning his initial clear and unmistakable error claim regarding the 1974 rating decision.  He cites from the Code of Federal Regulations, and addressed diagnostic codes for his scars, nerve and muscle injuries.  While his statements mention that his left eye was injured, and that an eye surgeon sutured his corneal laceration, he did not provide any statements about ongoing symptoms associated with his left eye injury.  The majority of his statements addressed disfigurement, nerve damage, and mastication limitations.

The Board notes that the 1995 VA examination included a notation of left vision to 20/40, and did not indicate whether this was corrected or uncorrected vision.  Subsequent VA examination and treatment records have indicated that the Veteran's left distance vision is 20/40, uncorrected.  His best corrected distance vision in his left eye has ranged from 20/30 at worst (2002) to 20/20 at best (1974), and was most recently noted to be 20/25-2 (2010).  Thus, his best corrected left vision has not met the criteria for a compensable rating based on central visual acuity, as his left vision would need to be 20/50 for a 10 percent rating.  

Under the 1973 and 2008 versions of 38 C.F.R. § 4.75, "in cases of keratoconus in which contact lenses are medically required and when there exists a difference of more than 4 diopters of spherical correction between the two eyes, the best possible visual acuity of the poorer eye without glasses, or with a lens of not more than 4 diopters difference from that used with the better eye, will be taken as the visual acuity of the poorer eye."  38 C.F.R. § 4.75 (1973, 2008).

Similarly, the new criteria have an exception in cases of when there exists a difference of more than 3 diopters of spherical correction between the two eyes.  38 C.F.R. § 4.76(b) (2013).  In these circumstances, VA evaluates the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity.

In this case, however, there is no evidence indicating that the Veteran has been diagnosed with keratoconus at any time during the pendency of the appeal.

As such, the evidence of record does not show that the Veteran's left eye astigmatism and cornea scar warrant a compensable rating under diagnostic criteria addressing central visual acuity under Diagnostic Codes 6078 and 6079.  38 C.F.R. § 4.84a, 4.79 (1973, 2008, 2012).

Additionally, there is no indication of active pathology of the left cornea laceration.  The laceration has been noted to be a well-healed scar during each examination, including in 1974.  Thus a compensable rating under Diagnostic Code 6009 is not warranted.  38 C.F.R. § 4.84a (1973, 2008).

Lastly, while the Veteran suffered a laceration to his left cornea, he did not undergo a corneal transplant.  He also has not complained of symptoms of pain, photophobia and glare sensitivity.  As such, a compensable rating is not warranted under this alternative diagnostic code.

The Board concludes that the preponderance of the evidence is against a finding for a compensable rating for the Veteran's left eye astigmatism and cornea scar.  The Veteran has described blurred vision without the use of glasses, and the Board finds that his complaints are credible.  The rating criteria, in this case, applies to best corrected distance vision.  For the Veteran, his best corrected distance vision has not reached the level of 20/50 in the left eye, and therefore he does not meet the criteria for a compensable rating.

Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). 

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996). 

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1) ; Thun, 22 Vet. App. at 116. 

In this case, the schedular evaluation  is adequate.  The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected eye disability, and provides for higher ratings.  The Board has considered alternative diagnostic codes, but a compensable rating has not been found appropriate.  His singular complaint of blurred vision without glasses has been considered within his noncompensable rating.


ORDER

Entitlement to an initial compensable rating for service-connected visual impairment of the left eye including astigmatism and a left cornea scar from December 20, 1973 to the present is denied.



REMAND

In August 2012, the Board remanded the claim decided above.  The Board also noted that TDIU was raised by the record, but that the RO had deferred the issue without adjudication in a December 2011 rating decision.  Thus, the Board did not address the Veteran's TDIU claim in the 2012 and 2013 remands.

A review of Virtual VA and the claims file reveals that while the RO deferred the issue of TDIU in 2011, it as yet has gone undecided.  As Rice held that a claim for an increased rating, along with evidence of unemployability or marginal employment allows the Board to address entitlement to TDIU, the Board will remand a claim of TDIU to ensure that the issue is not lost in the shuffle between the various parts of the VA.  See generally Rice v. Shinseki, 22 Vet. App. 447 (2009).  

VA treatment records include counseling records where the Veteran reports that he has part-time employment with the U.S. Post Office, and that he greatly enjoys this employment.  Prior to his U.S. Post Office employment he worked as a building manager, but he was fired.  He has indicated that he was unable to keep up with his responsibilities as a building manager as a result of the combined effects of his service-connected disabilities, specifically his hepatitis C.  The record does not contain any information regarding his employment status after 2007.

In this case, a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, should be forwarded to the Veteran. Further, once the VA Form 21-8940 is received and former employers are identified, then VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, should be forwarded to the former employers listed on the form.  If the Veteran is unemployed, then he should be scheduled for a VA examination to determine if he is rendered unemployable due to his service-connected disabilities.


Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran corrective VCAA notice which informs the Veteran of the evidence necessary to establish TDIU.

2.  Forward a VA Form 21-8940 to the Veteran, and subsequently forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employers listed on the Veteran's submitted VA Form 21-8940.

3.  If the Veteran is unemployed (or marginally employed) and seeking TDIU, then he should be scheduled for any additional VA examinations needed to address whether it is at least as likely as not that service connected disorders alone render him unable to secure and maintain substantially gainful employment.  Any examination conducted must describe any functional impairment and the impact of the service connected disorder on physical and sedentary employment.

4.  Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.

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).




______________________________________________
J. BARONE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs