Citation Nr: 1331641 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 08-34 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an extraschedular evaluation for service-connected left eye exotropia. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1950 to August 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC for referral to the Director of Compensation and Pension for consideration of an extraschedular rating. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). A full discussion regarding the RO's compliance with the May 2013 Board Remand is included in the Duties to Notify and Assist section below. The Veteran submitted additional argument with attachments after the case was certified to the Board that was not considered in the most recent August 2013 supplemental statement of the case. The Veteran did not submit a waiver of initial RO consideration of the evidence attached to the argument; however, upon review of this particular evidence, the Board finds that a waiver of initial consideration of this evidence by the RO is not necessary as the evidence attached to the argument is essentially duplicative of evidence already of record. 38 U.S.C.A. § 20.1304 (2013). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. 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). FINDINGS OF FACT 1. Pursuant to a May 2013 Board Remand during this appeal and the provisions of 38 C.F.R. § 3.321(b)(1), the VA Director of Compensation and Pension Service denied an extraschedular rating for the Veteran's service-connected left eye exotropia. 2. The evidence of record reflects that the Veteran's service-connected left eye exotropia results in an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards. 3. The Veteran's left eye exotropia causes an inability to perform tasks requiring a high level of depth perception and interferes with activities and employment beyond that contemplated by the schedular criteria and is consistent with the degree of impairment contemplated by a 40 percent extraschedular disability rating. CONCLUSION OF LAW The criteria for a 40 percent extraschedular rating for left eye exotropia have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim for service connection for an eye condition prior to initial adjudication. A March 2001 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Concerning the appeals for higher initial ratings, because they are appeals that arise from the Veteran's disagreement with the initial evaluation following the grant of service connection for left eye exotropia, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the U.S. Court of Appeals for Veteran's Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007). The record also reflects that the Veteran was provided a meaningful opportunity to participate effectively in the processing of his claim for a higher initial rating on an extraschedular basis. Indeed, the Veteran has been represented throughout the appeals process and the Veteran's own statements revealed indications suggesting that the left eye exotropia affected daily life beyond what the schedular criteria contemplated. As such, the Veteran had actual knowledge of the provision governing general rating considerations in exceptional cases and had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). As mentioned above, the case was referred to the Director of Compensation and Pension Service for extraschedular evaluation of the Veteran's service-connected left eye exotropia. Pursuant to a request from the AMC, the Chief of the Compensation and Pension Service submitted an administrative review regarding extraschedular compensation in July 2013. The Board's directives were followed and the RO is in substantial compliance of the May 2013 Board Remand. See Stegall, 11 Vet. App. at 268. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Extraschedular Evaluation for Left Eye Exotropia An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88, 96 (1996); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is an appellate body. See 38 U.S.C.A. § 7104. As such, the Court has held that the Board does not have authority to assign an extraschedular evaluation in the first instance. Floyd, 9 Vet. App. at 94-96. That authority has been delegated by the Secretary to the Director, Compensation and Pension Service, who is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b). Statute provides that the Secretary of Veterans Affairs shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to Veterans or their dependents. 38 U.S.C.A. § 511(a). All questions, in a matter which under § 511(a) of Title 38 is subject to a decision by the Secretary, shall be subject to one review on appeal to the Secretary. 38 U.S.C.A. § 7104(a). Final decision on such appeals shall be made by the Board. Id. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In this case, service connection was established for left eye exotropia in a February 2008 rating decision with a noncompensable disability rating. See 38 C.F.R. § 4.84a (2008). In May 2013, the Board denied the claim for an initial compensable rating on a schedular basis. However, as mentioned above, VA regulations provide that, to accord justice, a rating may be assigned outside of the rating schedule if certain conditions are met. 38 C.F.R. § 3.321(b). Pursuant to the Board's May 2013 Remand, the RO referred this matter for extraschedular consideration to the Director Compensation and Pension Service. In a July 2013 writing, the Chief of the Compensation and Pension Service determined that an extraschedular rating was not warranted in this case. The Veteran has perfected an appeal to the Board of the rating assigned for his service-connected left eye exotropia. The question of whether an extraschedular rating is warranted for the Veteran's left eye exotropia has been subject to a decision by the agency of original jurisdiction. As such, the Board has appellate jurisdiction to review the matter and decide whether an extraschedular rating is warranted. In the March 2012 Memorandum Decision, the Court indicated that in determining the appropriate disability rating for the Veteran's service-connected left eye exotropia, the Board may consider the interaction of the left eye and the non-service-connected right eye. In an October 2008 personal statement, the Veteran stated that his service-connected left eye disability has caused the inability to focus with his right eye even though he also indicated that he could see fairly well using one eye at a time. He explained that he lacks depth perception, which affects his ability to drive, participate in sports, hunt, or perform other activities requiring depth perception. In the December 2012 examination report, the VA examiner indicated that the Veteran had alternating, large angle exotropia, which resulted in the inability to use stereoscopic vision and impaired depth perception. While the VA examiner also noted that the depth perception impairment is only cosmetic, the Board finds (as also indicated in the May 2013 Board Remand) that the Veteran is competent and credible to state that the lack of depth perception resulted in more than cosmetic impairment, including difficulties with driving and other activities of daily living. Indeed, lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, the December 2012 examiner indicated that the left eye exotropia impacts the Veteran's ability to work as he could not perform tasks requiring high levels of depth perception. The record indicates that the Veteran worked in the oil field industry primarily as a mechanical engineer. This evidence, as a whole, tends to show that the Veteran's left eye exotropia results in impaired depth perception and the inability to use stereoscopic vision not necessarily contemplated by the rating schedule. Hence, a rating higher than that contemplated by the rating schedule is warranted. While the rating schedule sets out relatively objective criteria for rating left eye exotropia (rated by analogy under impairment of central visual acuity), and, in general, for rating most disabilities, there is no similar objective criteria for determining the percentage to be awarded on an extraschedular basis. The guiding principle, as gleaned from 38 C.F.R. § 3.321(b), is that the rating should "accord justice." Consistent with that principle, the Board has weighed the facts in this case and determined that an evaluation of 40 percent, but no higher, is warranted for the Veteran's left eye exotropia. This is the full rating to be assigned for this disability and contemplates the impairment caused by impaired depth perception and the lack of stereoscopic vision. In allowing a 40 percent extraschedular evaluation, the Board has considered that the Veteran's disability does have an exceptionally disabling effect, particularly on his abilities to drive, work, and perform tasks requiring high levels of depth perception. The Board must also note, however, that the Veteran is not entirely impaired by the left eye exotropia, thus warranting a 40 percent extraschedular rating, but no higher. Indeed, in the December 2012 VA examination, the examiner noted the Veteran's individual visual acuity was "quite good," and he should not be considered legally blind. The weight of the probative lay and medical evidence shows that the Veteran has the inability to use stereoscopic vision and impaired depth perception as a result of the left eye exotropia as manifested by the inability to drive and complete certain work tasks, the impact of which causes impairment not foreseen in the general VA rating schedule. Balancing the effect of the Veteran's exceptional situation and the impact on his daily life against his available options, the Board finds that a 40 percent extraschedular evaluation accords justice in this case. To award the Veteran an extraschedular evaluation higher than 40 percent for the left eye exotropia is not warranted as the weight of the lay and medical evidence does not reflect that the Veteran's left eye exotropia completely incapacitates him. The Veteran has argued, including in the November 2008 substantive appeal, that the eye disability effected his ability to drive and participate in activities requiring depth perception. The Board has reviewed all evidence of record and finds that a rating higher than 40 percent disabling is not warranted for any period of time on appeal. See Fenderson, 12 Vet. App. at 119. This decision required application of the reasonable doubt standard. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Board has resolved any reasonable doubt in the Veteran's favor in arriving at an extraschedular evaluation of 40 percent disabling for left eye exotropia. There is no reasonable doubt that an extraschedular rating higher than 40 percent may be warranted. ORDER A extraschedular evaluation of 40 percent is granted for the service-connected left eye exotropia. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs