Citation Nr: 1333569 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-04 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a rating in excess of 20 percent for bilateral open angle glaucoma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active military duty from August 1976 to August 1979, November 2001 to November 2002, and January 2003 to January 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which continued a previously assigned rating of 20 percent for bilateral primary open angle glaucoma. In July 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. FINDING OF FACT Bilateral primary open angle glaucoma has been manifested by impairment of field vision equivalent to 20/100 in the right eye and 20/200 in the left eye. CONCLUSION OF LAW With resolution of the benefit of the doubt in the Veteran's favor, the criteria for a disability rating of 60 percent, but no higher, for bilateral primary open angle glaucoma have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7 (2013); 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.77, 4.84, 4.84a, Diagnostic Code 6076, 6080 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. The Veteran and his representative were notified of the information and evidence needed 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). In addition, the RO obtained all identified records and was provided thorough VA examinations. Finally, neither the Veteran nor his representative has indicated that VA's VCAA duties have not been satisfied. Criteria & Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the relevant rating period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's claim arises from his March 2007 claim for an increased rating for bilateral primary open angle glaucoma. 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 December 10, 2008. The December 2008 revisions are only applicable to applications for benefits received by VA on or after December 10, 2008. See 73 Fed. Reg. 66,543-66,554 (November 10, 2008). As the present claim was filed before that date, the changes are not applicable and the Board will only consider the criteria under the prior regulations set forth under 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.77, 4.84, 4.84a (2008). The Veteran's bilateral primary open angle glaucoma is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6080, the criteria to evaluate impairment of field vision. 38 C.F.R. § 4.84a (2008). Diagnostic Code 6013 provides that simple, primary, or noncongestive glaucoma is rated on impairment of visual acuity or field loss and that a minimum rating is 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6013 (2008). 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 6061 to 6079 (in effect prior to December 10, 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. The percentage evaluation will be 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. A noncompensable rating is warranted for impairment of central visual acuity when vision is 20/40 or better bilaterally. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable 20/50 and vision in the other eye is correctable to either 20/40 or 20/50; (2) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/40; or (3) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/40. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). Higher ratings are available for more severe loss of central visual acuity. Impairment of field of vision is evaluated pursuant to the criteria found in Diagnostic Code 6080. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (in effect prior to December 10, 2008). Under Diagnostic Code 6080, homonymous hemianopsia of the visual field warrants a 30 percent rating, 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. Id. Concentric contraction of the visual field to 5 degrees, results in a 100 percent evaluation if bilateral, a 30 percent rating if unilateral, or may be rated as 5/200. Concentric contraction of the visual field to 15 degrees but not to 5 degrees results in a 70 percent bilateral evaluation, a 20 percent unilateral rating, or is rated as 20/200. Id. Concentric contraction of the visual field to 30 degrees but not to 15 degrees, bilaterally, results in a 50 percent evaluation, unilaterally results in a 10 percent rating, or is rated as 20/100. Concentric contraction of the visual field to 45 degrees but not to 30 degrees bilaterally results in a 30 percent rating, unilaterally results in a 10 percent evaluation, or is rated as 20/70. Id. A concentric contraction of the visual field to 60 degrees but not to 45 degrees results in a bilateral evaluation of 20 percent, a unilateral evaluation of 10 percent, or rate as 20/50. Demonstrable pathology commensurate with the functional loss will be required. The concentric contraction evaluations require contraction within the stated degrees, temporally; the nasal contraction may be less. 38 C.F.R. § 4.84a, Diagnostic Code 6080, Note (2). According to 38 C.F.R. § 4.76, measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. 38 C.F.R. § 4.76a explains how ratings are assigned based on impairment of field vision, as follows. 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. According to Table III in 38 C.F.R. § 4.76a, the normal visual field extent at the 8 principal meridians, in degrees, is as follows: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. The total visual field is 500 degrees. 38 C.F.R. § 4.76a, Table III (2008). A June 2006 VA ophthalmology note recorded distance visual acuity with correction (VA cc) of 20/20-1 in the right eye and 20/20-2 in the left eye. Subsequent, regular VA ophthalmology notes revealed distance visual acuity with correction of 20/40 or better in the right eye and 20/25 or better in the left eye. In a January 2007 eye clinic check-in note, the nurse recorded the Veteran's distance visual acuity with correction as 20/63 in the right eye and 20/32 in the left eye. The ophthalmologist rechecked the Veteran's distance visual acuity with correction the same day and found 20/30+2 in the right eye and 20/20 in the left eye. The Veteran submitted private visual field testing charts dated in November 2004 and January 2007 in support of his March 2007 claim for an increased rating. An April 2007 VA ophthalmology follow-up note reflects that the ophthalmologist interpreted the January 2007 Humphrey visual fields testing by an outside provider as follows: right eye: "rel, sup inf arc and sup arc, progressed from 2004" and left eye: "rel, few sup temp depressions, stable." The assessment was Humphrey visual fields stable in the left eye but progressed in the right eye. During an April 2007 VA eyes examination, the Veteran described poor peripheral vision of his right eye and decreased visual acuity at distance with glasses following his second period of military service. On examination, uncorrected far vision in the right eye was 20/70-2, uncorrected near vision in the right eye was 20/70, and corrected far vision in the right eye was 20/30-1. Uncorrected far vision in the left eye was 20/40, uncorrected near vision in the left eye was 20/50-1, and corrected far vision in the left eye was 20/20. Intraocular pressure was reportedly difficult to take because the Veteran had deep-set eyes, but applanation intraocular pressures were 14 in the right eye and 15 in the left eye. The examination report reflects that a Goldmann visual field test had been ordered. Following a review of the claims file and ophthalmologic examination, the diagnosis was advanced, primary, open-angle glaucoma of each eye, with the glaucoma more advanced in the right eye than the left eye; and refractive error of compound, myopic astigmatism of the right eye and mixed astigmatism of the left eye, with presbyopia, unrelated to his glaucoma. A note at the end of the VA examination report reflects that the Veteran canceled the April 2007 appointment for a Goldmann visual field test. The examiner also reviewed the April 2007 VA ophthalmic note that interpreted the January 2007 private visual field testing charts. In May 2007 the Veteran presented for Goldmann visual field testing in association with his April 2007 VA examination. Goldmann visual fields showed the following field of vision findings for the right eye: 75 degrees temporally, 84 degrees down temporally, 49 degrees down, 42 degrees down nasally, 25 degrees nasally, 13 degrees up nasally, 14 degrees up, and 30 degrees up temporally. Adding the findings together results in 332 total degrees lost. Subtracting 332 total degrees lost from 500 degrees of normal visual field results in 168 total remaining degrees of visual field. Dividing 168 total remaining degrees by 8 results in an average concentric contraction of 21 degrees. Goldmann visual fields showed the following field of vision findings for the left eye: 83 degrees temporally, 73 degrees down temporally, 65 degrees down, 50 degrees down nasally, 48 degrees nasally, 22 degrees up nasally, 20 degrees up, and 28 degrees up temporally. Adding the findings together results in 389 total degrees lost. Subtracting 389 total degrees lost from 500 degrees of normal visual field results in 111 total remaining degrees of visual field. Dividing 111 total remaining degrees by 8 results in an average concentric contraction rounded to 14 degrees. In correspondence dated in August 2007, A. Lopez, M.D., indicated that the Veteran was last seen by her in July 2007, at which time his best corrected visual acuity was 20/70 in the right eye with severe visual field defect. Therefore, he was considered legally blind, and in the ophthalmologist's opinion, there was no surgical or routine refractive measure that would improve his vision. In compliance with the Board's July 2011 remand instructions, the AMC asked the Veteran in a July 2011 letter to obtain and send to the AMC the treatment records from Dr. A. Lopez or to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, to allow VA to obtain those records on his behalf. The letter was copied to his service representative. The Veteran did not reply to the letter or submit additional records from Dr. A. Lopez. The Veteran was afforded another VA eyes examination in April 2012. He related that the glaucoma in the left eye was getting worse. He reported that there was no noticeable constriction of the field of vision with either eye, but he complained of occasionally bumping into things. He indicated that his blurred vision was treated with glasses and believed that his distance visual acuities were getting worse. He denied any incapacitation caused by his eye symptoms. On examination, uncorrected far vision in the right eye was 20/100, uncorrected near vision in the right eye was 20/100, corrected far vision in the right eye was 20/40 or better, and corrected near vision in the right eye was 20/40 or better. Uncorrected far vision in the left eye was 20/70, uncorrected near vision in the left eye was 20/40 or better, corrected far vision in the left eye was 20/40 or better, and corrected near vision in the left eye was 20/40 or better. The examiner indicated that the Veteran did not have anatomical loss, light perception only, extremely poor vision, blindness of either eye, corneal irregularity, or diplopia. Goldmann visual field testing was performed, the results of which were reported by the examiner in a July 2012 addendum. Goldmann visual fields utilizing a III/4e test object showed the following field of vision findings for the right eye: 72 degrees temporally, 63 degrees down temporally, 50 degrees down, 35 degrees down nasally, 37 degrees nasally, 25 degrees up nasally, 25 degrees up, and 35 degrees up temporally. Adding the findings together results in 342 total degrees lost. Subtracting 342 total degrees lost from 500 degrees of normal visual field results in 158 total remaining degrees of visual field. Dividing 158 total remaining degrees by 8 results in an average concentric contraction rounded to 20 degrees. Goldmann visual fields utilizing a III/4e test object showed the following field of vision findings for the left eye: 75 degrees temporally, 68 degrees down temporally, 57 degrees down, 47 degrees down nasally, 55 degrees nasally, 37 degrees up nasally, 29 degrees up, and 40 degrees up temporally. Adding the findings together results in 408 total degrees lost. Subtracting 408 total degrees lost from 500 degrees of normal visual field results in 92 total remaining degrees of visual field. Dividing 92 total remaining degrees by 8 results in an average concentric contraction rounded to 12 degrees. The diagnosis was bilateral primary open angle glaucoma. The examiner remarked that the Veteran also had bilateral compound myopic astigmatism, presbyopia, and a left ptosis, none of which were related to glaucoma. The Board notes that in both the January 2008 statement of the case issued by the RO and the August 2012 supplemental statement of the case issued by the AMC, the RO and AMC calculated the average concentric contraction for each eye by dividing the total degrees lost by 8 rather than subtracting the total degrees lost from 500 and then dividing by 8. As a result, for example, the RO calculated an average concentric contraction in January 2008 of 41 in the right eye (326÷8=40.75, rounded to 41) and 50 in the left eye (399÷8=49.875, rounded to 50). It appears that the RO then assigned a 20 percent rating for bilateral primary open angle glaucoma based on concentric contraction of the visual field to 45 but not to 30 for the right eye or based on an equivalent visual acuity of 20/70 (6/21), and based on concentric contraction of the visual field to 60 but not to 45 for the left eye or based on an equivalent visual acuity of 20/50 (6/15). Then, alternatively rating the Veteran's impairment of field vision based on an equivalent visual acuity of 20/70 for the right eye and 20/50 for the left eye, the RO assigned a 20 percent rating under Table V (Diagnostic Code 6078). See 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2008). As noted, the AMC made the same calculation error of dividing the total degrees lost by 8 rather than subtracting the total degrees lost from 500 and then dividing by 8 when reviewing visual field data from the May 2007 and April 2012 VA examinations. With resolution of reasonable doubt in the Veteran's favor, the Board concludes that the evidence of record establishes that a rating of 60 percent, but no higher, is warranted for bilateral primary open angle glaucoma. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Here, the medical evidence of record reflects that bilateral primary open angle glaucoma is explicitly diagnosed and manifested by contraction of visual fields in both eyes. Accordingly, applying the May 2007 field vision data of an average concentric contraction of 21 in the right eye and 14 in the left eye to Diagnostic Code 6080, the Board finds that a 60 percent rating is warranted for bilateral primary open angle glaucoma based on equivalent visual acuity of 20/100 in the right eye and 20/200 in the left eye. Similarly, applying the April 2012 field vision data of an average concentric contraction of 20 in the right eye and 12 in the left eye to Diagnostic Code 6080, the Board finds that a 60 percent rating is warranted for bilateral primary open angle glaucoma based on equivalent visual acuity of 20/100 in the right eye and 20/200 in the left eye. Applying the May 2007 and April 2012 results to Table V results in a 60 percent rating under Diagnostic Code 6076. The Board has considered whether a rating higher than 60 percent is warranted; however, the medical evidence of record does not reflect field vision limited by more than the calculated average concentric contractions on VA examination in May 2007 or in July 2012, or at any other time. Therefore, a rating in excess of 60 percent for bilateral primary open angle glaucoma is not warranted. For all the foregoing reasons, the Board finds that the most probative and credible evidence supports the assignment of a 60 percent rating, but no higher, during the entire appeal period. The evidence of record, however, does not support a rating in excess of 60 percent for bilateral primary open angle glaucoma at any point during the course of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, entitlement to a rating higher than the 60 percent rating awarded for bilateral primary open angle glaucoma disability is not warranted, and the claim must be denied. The Board has considered whether the Veteran's bilateral primary open angle glaucoma disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's glaucoma disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. Because, however, the preponderance of the evidence is against any claim for a higher rating than that awarded, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a disability rating of 60 percent for bilateral primary open angle glaucoma is allowed, subject to the regulations governing the award of monetary benefits. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs