Citation Nr: 1331765 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 07-00 039A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial rating in excess of 10 percent for glaucoma. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to August 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and March 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, granted service connection for glaucoma associated with diabetes mellitus and assigned a separate 10 percent evaluation for the disability effective January 14, 2004. In January 2009, February 2011, and March 2013, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. When the appeal was before the Board in March 2013, a claim for entitlement to compensation under 38 U.S.C.A. § 1151 for an eye disability due to VA surgery was referred to the Agency of Original Jurisdiction (AOJ) for adjudication. The record before the Board does indicate that any action has been taken on this claim, and it is once again referred to the AOJ. FINDINGS OF FACT 1. Prior to April 28, 2011, the Veteran's glaucoma was manifested by an average concentric contraction to 50 degrees in the right eye and to 40 degrees in the left eye. 3. Since April 28, 2011, the Veteran's glaucoma has manifested an average concentric contraction to 44 degrees in the right eye and to 45 degrees in the left eye. 3. Throughout the course of the appeal, corrected distant visual acuity has been no worse than 20/100 in the right eye and 20/50 in the left eye and no impairment of muscle function been demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial increased rating of 20 percent, but not higher, for glaucoma prior to April 28, 2011 are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.84a, Diagnostic Codes 6013-6080 (effective prior to December 10, 2008). 2. The criteria for an increased rating of 30 percent, but not higher, for glaucoma for the period beginning April 28, 2011 are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.84a, Diagnostic Codes 6013-6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for type II diabetes mellitus with glaucoma associated with herbicide exposure was granted in a November 2006 rating decision with an initial single 20 percent evaluation assigned effective January 14, 2004. The Veteran disagreed with the initial dual rating for diabetes and glaucoma and in a March 2007 rating decision was awarded a separate 10 percent evaluation for glaucoma, also effective January 14, 2004. He contends that a rating in excess of 10 percent is warranted as his glaucoma has required multiple surgeries and limits his vision. As a preliminary matter, the Board notes that the Veteran has been diagnosed with a nonservice-connected disability of the right eye that affects his visual acuity. Upon VA examination in September 2012, the Veteran was diagnosed with both moderate glaucoma and age-related macular degeneration of the right eye. The VA examiner noted that the Veteran's vision problems were due to the macular degeneration. An independent medical opinion was obtained in November 2012 and the physician specifically concluded that the Veteran's age-related macular degeneration was not related to active duty service or the Veteran's service-connected disabilities, including glaucoma and diabetes mellitus. Instead, the independent doctor stated that the Veteran's macular degeneration was due to the natural aging process, as the name implied. However, none of the Veteran's examining physicians have differentiated the amount of right eye visual impairment resulting from the service-connected glaucoma and the nonservice-connected macular degeneration. VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Thus, while the Veteran's macular degeneration of the right eye is not due to service or a service-connected disability, the Board must consider the sum total of the Veteran's visual impairment when calculating the appropriate rating for the service-connected glaucoma. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the schedular criteria for rating eye disabilities were amended during the pendency of the appeal. See 73 Fed. Reg. 66,543 -66,554 (November 10, 2008); see also corrections at 74 Fed. Reg. 7,648 (February 19, 2009). Such regulations apply only to claims filed on or after December 10, 2008. As the Veteran's claim for an increased rating was pending before the change of criteria effective December 10, 2008, it will not be evaluated under the current criteria for rating the eye. See 73 Fed. Reg. 66,543 -66,554 (November 10, 2008) (codified at 38 C.F.R. § 4.79, Diagnostic Codes 6000-6091 (2013)). Since the time a separate 10 percent evaluation was assigned for the Veteran's glaucoma in the March 2007 rating decision on appeal, the disability has been rated under 38 C.F.R. § 4.84a , Diagnostic Code 6013. Under the version of this diagnostic code in effect prior to December 2008, simple primary noncongestive glaucoma is rated on impairment of visual acuity or field loss, with a minimum rating of 10 percent provided under the code. 38 C.F.R. § 4.84a , Diagnostic Code 6013 (2007). After review of the evidence, the Board finds that an increased rating of 20 percent is warranted for the Veteran's service-connected bilateral glaucoma for the period prior to April 28, 2011 under Diagnostic Code 6080. Under this diagnostic code, loss of temporal half of the visual field warrants a 30 percent rating if bilateral, a 10 percent rating if unilateral, or is rated as 20/70. Loss of the nasal half of the visual field bilaterally results in a 20 percent rating, unilaterally results in a 10 percent evaluation, or may be rated as 20/50. 38 C.F.R. § 4.84a, Diagnostic Code 6080. The extent of contraction of the visual field in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The results of field of vision testing must be recorded on a standard visual field chart, which must be included with each examination. 38 C.F.R. § 4.76. The number of degrees lost is determined at each meridian by subtracting the remaining degrees for the normal visual fields in Table III. The degrees lost are then added together and divided by eight. The result represents the average concentric contraction of the visual field in degrees. 38 C.F.R. § 4.76a. The Veteran's most severe contraction of the visual field during this period was demonstrated upon VA examination in April 2009. The results of the visual field examination (reported in an August 2010 addendum report) establish that the right eye demonstrated a visual field contraction of 50 while the left eye demonstrated a visual field contraction of 40. Diagnostic Code 6080 provides that a unilateral visual field contraction of 50 degrees is to be rated as 10 percent disabling, or, alternatively, as visual acuity of 20/50. Visual field contraction to 40 degrees is also rated as 10 percent disabling, or, alternatively, as visual acuity of 20/70. Ratings for central visual acuity impairment provide that when vision in one eye is 20/70 and 20/50 in the other eye, the appropriate disability evaluation is 20 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6078, Table V. Therefore, the Veteran's contraction of the visual field during the April 2009 VA examination is consistent with an increased 20 percent rating and a 20 percent rating is appropriate for the period prior to April 28, 2011. The Board notes that the April 2011 VA examination marks the first instance during the claims period that the Veteran's visual field was examined. For the period beginning April 28, 2011, an increased 30 percent evaluation is warranted based on contraction of the visual field. Visual field testing during the April 2011 VA examination (reported in a June 2012 addendum report) demonstrated a right eye visual field contraction of 44 while the left eye demonstrated a visual field contraction of 45. Diagnostic Code 6080 provides that a bilateral visual field contraction of 45 degrees, but not to 30 degrees is rated as 30 percent disabling. The Board notes that a March 2012 VA examiner also determined that the Veteran experienced significant visual field loss. Thus, the Veteran's contracture of visual field during the period beginning April 28, 2011 is consistent with a 30 percent evaluation. A rating in excess of 30 percent is not warranted at anytime during the applicable claims period based on contraction of the visual field. The Veteran demonstrated improved measurements of the visual field upon VA examination in September 2012, and there is no other evidence indicating that a higher evaluation is warranted based on this aspect of the disability. The Board must now determine whether higher ratings are warranted at any time during the claims period based on impairment to visual acuity. For VA purposes, the severity of impaired central visual acuity is determined by comparing visual test results on the Snellen index with the criteria set forth in 38 C.F.R. § 4.84(a), Diagnostic Codes 6061 to 6079. Under 38 C.F.R. § 4.75, the best distant vision obtainable after best correction by glasses will be the basis of rating. A 10 percent disability rating is warranted for visual acuity where the vision is 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. A 20 percent disability rating is warranted for visual acuity where the vision is 20/70 in one eye and 20/50 in the other; or where vision is 20/100 in one eye and 20/50 in the other; or where vision is 20/200 in one and 20/40 in the other; or where vision is 15/200 in one eye and 20/40 in the other. Diagnostic Codes 6077, 6078 (2007). Throughout the claims period, the Veteran has not demonstrated impairment of corrected visual acuity consistent with a rating in excess of 20 percent under Diagnostic Code 6078. Visual acuity was most limited upon VA examination in March 2012, when the Veteran manifested corrected distance vision of 20/100 in the right eye and 20/50 in the left eye, consistent with a 20 percent rating under Diagnostic Code 6078. As discussed above, the Veteran is already in receipt of a 30 percent evaluation based on contraction of the visual field during this period, and an increased rating is therefore not possible based on impairment of visual acuity. As a final matter, the Board notes that the Veteran demonstrated an episode of severe loss of visual acuity in September 2012 while receiving treatment from the Ann Arbor VAMC. On September 10, 2012, his visual acuity measured 20/200 in both eyes, consistent with a 70 percent rating under Diagnostic Code 6075. However, the Board finds that the September 2012 evaluation is not an accurate portrayal of the Veteran's eyesight during this period. First, there is no evidence indicating that the September 2012 vision measurement reported the Veteran's best correction by glasses, which forms the basis for rating the disability in accordance with 38 C.F.R. § 4.84(a). Second, the Veteran's visual acuity improved upon later VAMC testing, and measured 20/60 in the right eye and 20/150 in the left eye at the most recent ophthalmology evaluation in April 2013. Thus, the finding of bilateral visual acuity to 20/200 in September 2012 is not an accurate representation of the Veteran's eyesight and cannot form the basis of an increased disability rating for glaucoma. In sum, the Veteran's glaucoma warrants an increased 20 percent rating for the period prior to April 28, 2011 and a 30 percent rating thereafter based on contracture of the visual field. While visual acuity has also been limited, it is not of sufficient severity to warrant increased ratings other than those already granted by the Board. The Board has considered whether there is any other schedular basis for granting a higher rating other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for ratings higher than those already granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation 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, 3.326(a) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran has initiated an appeal regarding the initial rating assigned following an award of service connection. The claim for service connection for the disability on appeal is now substantiated and the filing of a notice of disagreement (NOD) as to the November 2006 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The September 2007 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disability at issue. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, records from the Social Security Administration (SSA), and private medical records. Additionally, the Veteran was also provided proper VA examinations and medical opinions in response to his claim. The Board also finds that VA has complied with the January 2009, February 2011, and March 2013 remand orders of the Board. In response to the Board's remands, the Veteran was provided VA examinations in April 2009, April 2011, March 2012, and September 2012 to determine the severity of his service-connected glaucoma. The record also contains several VA addendum reports including the VA examination eye exam charts and visual field calculations. The complete record was then provided to an independent physician for a medical opinion in November 2012. The Veteran's most recent treatment records from the Ann Arbor VAMC were also associated with the virtual claims file. The case was then readjudicated in an April 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an initial increased rating of 20 percent, but not higher, for glaucoma for the period prior to April 28, 2011 is granted. Entitlement to an increased rating of 30 percent, but not higher, for glaucoma for the period beginning April 28, 2011 is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs