Citation Nr: 1331307 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-18 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE What initial evaluation is warranted for diabetic retinopathy from January 2006? REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1968. This matter initially came before the Board of Veterans' Appeals (Board) from a June 2006 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Wilmington, Delaware. In that decision, the RO granted entitlement to service connection for diabetic retinopathy and assigned an initial noncompensable evaluation, effective January 2006. The Veteran timely appealed the initial rating assigned. In October 2009, the Board denied the claim. In August 2010, the United States Court of Appeals for Veterans Claims granted a joint motion to remand and vacate the Board's October 2009 decision. In September 2011 and again in March 2013, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), for development pursuant to the instructions in the joint motion. For the reasons stated below, the RO/AMC complied with the Board's remand instructions. FINDING OF FACT Throughout the appeal period, the Veteran's diabetic retinopathy has been manifested by distant vision obtainable after best correction by glasses of 20/40 or better, no abnormalities in visual field or muscle function, and no active pathology. CONCLUSION OF LAW The requirements for an initial compensable evaluation for diabetic retinopathy are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.84a, Diagnostic Codes 6006, 6079 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act As service connection, an initial rating, and an effective date have been assigned for diabetic retinopathy, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. In its March 2013 remand, the Board instructed that the RO/AMC obtain all private treatment records pertaining to care for diabetic retinopathy dating since June 2005 including those of Drs. Fichter and Smith. The RO/AMC was instructed to seek appropriate authorization and release of records and, if any outstanding records could not be obtained, document the attempts and notify the Veteran of the inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). In an April 2013 letter, the AMC requested from the Veteran authorization and consent to release information with regard to Drs. Fichter and Smith as well as any other private provider who had treated him for diabetic retinopathy since June 2005. The Veteran did not respond. As the Veteran's lack of response prevented the RO/AMC from taking further action to obtain the records identified by the Board, the RO/AMC was not required to take additional action pursuant to its duty to assist and substantially complied with the Board's March 2013 remand instructions. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. § 3.159(c)(1)(ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-Federal records, including providing authorization for release of records). See also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The Board will therefore proceed to the merits of the appeal. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 closely approximates the criteria for the higher rating. 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. 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). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants a uniform noncompensable rating. The Veteran's diabetes is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Note 1 to this Diagnostic Code provides that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating, and that noncompensable complications are considered part of the diabetic process under diagnostic code 7913. The Veteran's diabetes is not rated 100 percent and the Board will therefore consider whether his diabetic retinopathy warrants a separate compensable rating from the January 2006 effective date of the grant of service connection. The criteria for rating disabilities of the eye were amended effective December 10, 2008. See Schedule for Rating Disabilities; Eye, 73 Fed. Reg. 66543 (Nov. 10, 2008). Significantly, the Final Rule in the Federal Register contains an "Applicability Date" which states, "These amendments shall apply to all applications for benefits received by VA on or after December 10, 2008." As the Veteran's claim for entitlement to service connection for diabetic retinopathy was received in January 2006, the amendments are, by their terms, inapplicable to this claim. The Board will therefore consider entitlement to a higher initial rating for retinopathy under the criteria in effect at the time the Veteran filed his January 2006 claim. Those criteria did not contain a diagnostic code applicable to retinopathy, but 38 C.F.R. § 4.84a, Diagnostic Code 6006 was applicable to retinitis, which is the same disorder. See Bardwell v. Shinseki, 24 Vet. App. 36, 37, n. 1 (2010) ("Retinopathy is retinitis, an inflammation of the retina") (citing Dorland's Illustrated Medical Dictionary 1658-59 (31st ed. 2007)). 38 C.F.R. § 4.84a provided that eye diseases listed in Diagnostic Codes 6000 through 6009, including retinitis, are to be rated from 10 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. Active pathology is not defined in the regulation. The provisions of 38 C.F.R. § 4.75 provided that, while examinations should include uncorrected and corrected central visual acuity for distance and near, the best distant vision obtainable after best correction by glasses would be the basis of a rating, except in circumstances not present in this case. Table V, Ratings for Central Visual Acuity, provided that where vision in each eye was 20/40 or better a noncompensable rating was warranted under Diagnostic Code 6079. A March 2006 note from Dr. Fichter noted no ocular manifestations of the diabetes as of December 2005, that there was borderline open angle glaucoma, and that the Veteran should get a dilated examination at least yearly. On the March 2006 VA eye examination, it was noted that the Veteran's history was remarkable for a five to ten year history of type 2 diabetes which the appellant reported was under good control. His ocular history was unremarkable, and the Veteran noted he saw a private provider for his eyes. The examination report indicated that the Veteran's entering visual acuities without glasses as 20/20 in each eye. Pupils were equal, round, reactive to light, and there was no afferent pupillary defect. Extraocular muscles and confrontation visual fields were full and intact. The examiner conducted a full dilated examination and found, "There may be some very mild nonproliferative diabetic retinopathy by way of one dot hemorrhage in each eye, but otherwise the retina is healthy and unremarkable." There were no holes, tears, or detachment of the retina. The examiner diagnosed ametropic refractive error with best visual acuity of 20/20 in each eye without glasses and type 2 diabetes under very good control with "[p]erhaps some very mild nonproliferative diabetic retinopathy noted, but otherwise retina looks great." Following a November 2011 VA eye examination, the diagnoses were age related cataracts, mild nonproliferative diabetic retinopathy, and ocular hypertension. Corrected near and distant vision were 20/40 or better in each eye. Uncorrected distant vision was 20/40 in each eye. Uncorrected near vision was 20/70 in the left eye and 20/100 in the right eye. Pupils were round and reactive to light with no afferent pupillary defect present, there was no anatomical loss, light perception only, extremely poor vision, or blindness in either eye. There was no corneal irregularity that resulted in severe irregular astigmatism, and no diplopia. Slit lamp and external eye examination was normal except as to the lens, which was ac 3, ns 1 in the right eye and ac 1, ns 1 in the left eye. Internal eye examination was normal except for abnormal fundus and macula with scattered IR hemorrhage of the macula. There was no visual field defect. Eye conditions noted were cataract and retinal conditions. The cataract was preoperative without aphakia or dislocation of the crystalline lens and there was decrease in visual acuity or other visual impairment due to the cataracts, which were age related. There were no inflammatory eye conditions, glaucoma, or optic neuropathy. There was bilateral retinopathy but no decrease in visual acuity or other visual impairment attributable to it. There were no neurologic eye conditions or tumors or neoplasm. There was no scarring or disfigurement and no incapacitating episodes. Findings were similar on the January 2012 VA examination, during which the Veteran indicated he had not experienced any changes since the November 2011 VA examination. The Veteran noted he was scheduled for cataract surgery and had some blurry vision bilaterally. The diagnoses were the same. Corrected and uncorrected vision findings were the same. The same abnormalities of the lens and fundus were noted, as was the lack of a visual field defect. Macula was described as intraretinal. Retinal condition was described as retinal hemorrhage rather than retinopathy and it was again indicated that the Veteran's decrease in visual acuity or other visual impairment was not attributable to it. There was again no neurologic conditions, scarring or disfigurement, or incapacitating episodes. The above evidence demonstrates that the Veteran has not been entitled to a compensable rating for his diabetic retinopathy at any time during the appeal period. There has been no impairment of visual field or muscle function, and corrected distant vision has been 20/40 or better in each eye throughout the appeal period. The only possible basis for a compensable rating is the minimum 10 percent rating during active pathology for diseases of the eye rated under Diagnostic Codes 6000 through 6009. The Board finds, however, that the 10 percent rating is not warranted in this case because it cannot be said that there has been active pathology of the Veteran's retinopathy at any time during the appeal period. The above noted examination reports have indicated no abnormalities in visual field or muscle function, no pain, no rest-requirements, and no episodic incapacity. Moreover, blurry vision was attributed to non service-connected cataracts and vision was 20/40 or better throughout the appeal period. Although the term "active pathology" is not defined in the regulation, the Board finds that the lack of impairment due to diabetic retinopathy during the appeal period reflects a lack of active pathology and the minimum 10 percent rating is therefore not warranted under 38 C.F.R. § 4.84a. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a compensable rating under any potentially applicable diagnostic code at any time during the appeal period. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an initial compensable rating for diabetic retinopathy from January 2006 must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial compensable rating for diabetic retinopathy is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs