Citation Nr: 1334738 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 05-39 031A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for diabetic retinopathy, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2004 rating decision of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA) which increased the rating for diabetic neuropathy from 10 to 30 percent disabling. This issue was remanded by the Board in November 2008, September 2010, May 2012, and May 2013 for additional development. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDING OF FACT The Veteran's best corrected visual acuity for distant has been no worse than 20/70 for the right eye and 20/60 for the left eye during the appeal period, his average concentric contraction has been greater than 45 degrees bilaterally on every visual field test, and the Veteran does not have eye pain or incapacitating episodes. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.83, 4.84a Codes 6078, 6080 (2008); 38 C.F.R. §§ 4.7, 4.10, 4.21 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the Veteran was provided with letters in July 2003, January 2006, June 2006, November 2008, and May 2012 that contained all of the notification required by the VCAA, as interpreted by the courts. The July 2003 letter was provided to the Veteran prior to the initial adjudication of his claim. Although the notification regarding the assignment of disability ratings and effective dates was not received until after the initial adjudication of the claim, the claim has been readjudicated since receipt of the notification, thus curing any notice deficiency. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. The Veteran has declined his right to a hearing. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. The development requested in the remands has been completed. The May 2013 Board remand noted that by regulation, the visual field must be recorded twice, and the charts for both tests must be made a part of the examination report. This was accomplished via a June 2013 examination. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Increased Evaluation The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Service connection for diabetic retinopathy was established in a September 1999 rating decision, and this disability was evaluated as 10 percent disabling. The February 2004 rating decision increased the evaluation for diabetic retinopathy to 30 percent, effective July 15, 2003. While this appeal was pending, the rating criteria for evaluating disabilities of the eyes was revised and amended. See 73 Fed. Reg. 66543-54 (Nov. 10, 2008). Diseases of the eye are now rated under a General Rating Formula, under 38 C.F.R. § 4.79 (2013). However, as the new criteria are only applicable to claims filed on or after December 10, 2008, and the Veteran's claim was pending prior to that time, the Board will only consider the criteria under the prior regulations set forth under 38 C.F.R. § 4.84a (2008). The Veteran's diabetic retinopathy is evaluated under the rating code for retinitis. 38 C.F.R. § 4.84a Code 6006 (2008). This rating code states that retinitis is 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. The minimum rating during active pathology is 10 percent. For VA purposes, the severity of visual acuity loss is determined by applying the criteria set forth in 38 C.F.R. § 4.84a (2008). 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. See 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. See 38 C.F.R. § 4.75 (2008). 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. See 38 C.F.R. § 4.83a (2008). Loss of visual field is rated, under the criteria applicable to this appeal, by calculating remaining visual field extent at eight principal medians, subtracting the remaining field from the normal field, adding together the degrees lost, subtracting the total of lost degrees from the normal total field and then dividing by eight. 38 C.F.R. § 4.76a (2008). When indicated, measurements of the visual field will be made and the "usual perimeter methods" will be employed. The rating criteria require that not less than two recordings of the visual field would be made and the charts would be made a part of the report of examination. 38 C.F.R. § 4.76 (2008). According to 38 C.F.R. § 4.76a (2008), Table III, the normal visual field extent at the 8 principal meridians, in degrees, is: 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. Visual field defects are rated under Diagnostic Code 6080. Under this code, concentric contraction of visual field to 5 degrees warrants a 100 percent disability rating for bilateral loss, a 30 percent disability rating for unilateral loss, or is rated as 5/200 (1.5/60); concentric contraction of visual field to 15 degrees, but not to 5 degrees, warrants a 70 percent disability rating for bilateral loss, a 20 percent disability rating for unilateral loss, or is rated as 20/200 (6/60); concentric contraction of visual field to 30 degrees, but not to 15 degrees, warrants a 50 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/100 (6/30); concentric contraction of visual field to 45 degrees, but not to 30 degrees, warrants a 30 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/70 (6/21); concentric contraction of visual field to 60 degrees, but not to 45 degrees, warrants a 20 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/50 (6/15). Bilateral loss of the temporal half of the visual field warrants a 30 percent disability rating, unilateral loss warrants a 10 percent disability rating, or is rated as 20/70 (6/21). Bilateral loss of the nasal half of the visual field warrants a 20 percent disability rating, unilateral warrants a 10 percent disability rating, or is rated as 20/50 (6/15). 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2008). The Veteran was afforded a VA eye examination in October 2003. Corrected distant vision was 20/70 for the right eye and 20/60 for the left eye. A Goldman visual field showed minimal constriction in the left eye and more constriction in the right eye. The temporal field was only to 40 degrees and nasal field to 30 degrees. The remainder of the charts was not interpreted. The diagnoses included very early cataracts, background diabetic retinopathy in both eyes and suspected glaucoma. A December 2008 VA ophthalmology examination states that the Veteran is able to do all activities of daily living. He denied a history of pain associated with his eyes. He does complain of occasional blurriness for both near and distant vision but this was not a constant problem. On physical examination, confrontation fields in both eyes were full. Visual acuity was not provided. The Veteran was post cataract extraction in both eyes. He also had background diabetic retinopathy and primary open-angle glaucoma. An additional eye examination was conducted in December 2010. The Veteran did not have pain in either eye and he was able to do all activities of daily living. His only complaint was of occasional blurriness of his eye, especially at night. His corrected vision was 20/20 for the right eye and 20/30 for the left eye. Of note was that his left eye had 20/25 vision with uncorrected vision, which was better than the corrected vision. Visual field testing was included but not interpreted. A November 2011 VA eye examination shows that the Veteran's diagnoses include open angle glaucoma, pseudophakia, and background diabetic retinopathy. His best corrected distant vision for each eye was 20/40 or better. He did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distant and near corrected vision, with the near vision being worse. The Veteran had a visual field defect, with loss of the superior half of the right visual field. However, the examiner added that the Veteran did not have a decrease in visual acuity or other visual impairment. An interpretation of the visual field testing was included. The right eye had temporally, 70 degrees; down temporally, 56; down, 49; down nasally, 40; nasally, 42; up nasally, 55; up, 15; up temporally, 55. When compared to the normal visual fields, this represented a loss of 118 degrees. When the total loss of 118 degrees is subtracted from the normal visual field of 500 degrees, this totaled 382 degrees, which, when divided by 8 equals 47.75 degrees of average concentric contraction. The left eye had temporally, 68 degrees; down temporally, 59; down, 58; down nasally, 50; nasally, 50; up nasally, 50; up, 42; up temporally, 55. When compared to the normal visual fields, this represented a loss of 68 degrees. When the total loss of 68 is subtracted from the normal visual field of 500 degrees, this totaled 432 degrees, which, when divided by 8 equals 54 degrees of average concentric contraction. A June 2012 VA examination continued to show that the Veteran's best corrected distant vision for each eye was 20/40 or better. He had not experienced any incapacitating episodes for his eyes in the past 12 months. The June 2012 visual field testing showed that the right eye had temporally, 45 degrees; down temporally, 70; down, 55; down nasally, 40; nasally, 45; up nasally, 45; up, 20; up temporally, 45. When compared to the normal visual fields, this represented a loss of 135 degrees. When the total loss of 135 degrees is subtracted from the normal visual field of 500 degrees, this totaled 365 degrees, which, when divided by 8 equals 46.62 degrees of average concentric contraction. The left eye had temporally, 65 degrees; down temporally, 65; down, 45; down nasally, 65; nasally, 65; up nasally, 50; up, 35; up temporally, 55. When compared to the normal visual fields, this represented a loss of 75 degrees. When the total loss of 75 degrees is subtracted from the normal visual field of 500 degrees, this totaled 425 degrees, which, when divided by 8 equals 53 degrees of average concentric contraction. The Veteran underwent his most recent VA visual field testing in June 2013. On this occasion, each eye was tested twice, and the charts were included with the examination report. On the first test, the right eye had temporally, 75 degrees; down temporally, 57; down, 41; down nasally, 55; nasally, 71; up nasally, 32; up, 27; up temporally, 51. When compared to the normal visual fields, this represented a loss of 107 degrees. When the total loss of 107 degrees is subtracted from the normal visual field of 500 degrees, this totaled 393 degrees. When divided by 8 this equals 49.12 degrees of average concentric contraction. The left eye had temporally, 69 degrees; down temporally, 40; down, 36; down nasally, 45; nasally, 50; up nasally, 50; up, 27; up temporally, 55. When compared to the normal visual fields, this represented a loss of 131 degrees. When the total loss of 131 degrees is subtracted from the normal visual field of 500 degrees, this totaled 369 degrees, which, when divided by 8 equals 46.12 degrees of average concentric contraction. On the second test, the right eye had temporally, 75 degrees; down temporally, 57; down, 41; down nasally, 41; nasally, 55; up nasally, 40; up, 19; up temporally, 45. When compared to the normal visual fields, this represented a loss of 127 degrees. When the total loss of 127 degrees is subtracted from the normal visual field of 500 degrees, this totaled 373 degrees. When divided by 8 this equals 46.6 degrees of average concentric contraction. The left eye had temporally, 69 degrees; down temporally, 57; down, 23; down nasally, 42; nasally, 59; up nasally, 49; up, 32; up temporally, 50. When compared to the normal visual fields, this represented a loss of 119 degrees. When the total loss of 119 degrees is subtracted from the normal visual field of 500 degrees, this totaled 386 degrees, which, when divided by 8 equals 47.25 degrees of average concentric contraction. When these findings are compared to the rating criteria, the Board finds that entitlement to an evaluation in excess of 30 percent is not warranted for any portion of the period on appeal. When considered under the rating criteria for impairment of visual acuity, the Veteran's worst visual acuity was found on the October 2003 VA examination when his vision was 20/70 for the right eye and 20/60 for the left eye. This equates to the 30 percent evaluation already assigned. His visual acuity was 20/40 or better for each eye on every other examination, which does not merit an evaluation greater than 30 percent. 38 C.F.R. § 4.84a, Code 6078 (2008). The criteria for an increased evaluation based on impairment of field vision have also not been met. Average concentric contraction would have to be between 30 degrees and 15 degrees bilaterally to merit an evaluation in excess of 30 percent. However, each visual field test has shown that the Veteran's average concentric contraction has been between less than 60 degrees but no less than 45 degrees for each eye. There is no basis for an increased rating for impairment of the visual field. 38 C.F.R. § 4.84a, Code 6080 (2008). Finally, the Board notes that the Veteran denies a history of eye pain, and he has not experienced any episodic incapacity. There is also no evidence of any rest requirements, and he is able to perform all of his normal daily activities. Extraschedular Pursuant to § 3.321(b)(1) (2013), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2013). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The scheduler criteria adequately describe all of the Veteran's symptoms of diabetic retinopathy. These symptoms include limitation of visual acuity and field of vision, both of which are provided for in the rating criteria. The Veteran has not reported any additional symptoms. Moreover, even if the scheduler criteria were to prove inadequate, there is no record of marked interference with employment due to these service connected disabilities. He has not been hospitalized for this condition. He is able to perform all activities of daily living. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Total Rating The Board has considered entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU), but finds it has not been raised in this instance. The VA eye examiners found that the Veteran's disability did not impact his ability to work. A December 2008 VA diabetes examination showed that the Veteran was working full time at the U.S. Post Office and had only taken six days of sick leave during the previous year. Moreover, the Veteran is already in receipt of a combined 100 percent evaluation effective from December 2008, and he does not contend that he was unemployable prior to that date. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an increased rating for diabetic retinopathy is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs