Citation Nr: 1334886 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-17 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for macular degeneration, right eye, secondary to trauma, with retained foreign body, sclerotic cataract and defective vision (light perception only). 2. Entitlement to service connection of a left eye condition diagnosed as abnormal visual fields, rule out optic nerve atrophy, to include as secondary to macular degeneration, right eye, secondary to trauma, with retained foreign body, sclerotic cataract and defective vision (light perception only). 3. Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In August 2008 and December 2010, the Veteran was afforded hearings before a Decision Review Officer (DRO) and the Board, respectively. Transcripts of the testimony offered at these hearings have been associated with the record. In February 2011, the Board remanded this case for further development. It has been returned to the Board for disposition. It is noted that the Veteran has raised a claim for TDIU. See VA Form 21-8940 (October 2010). TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Because the Veteran has raised the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, his claim for TDIU is part and parcel to that claim for an increased rating. See, Rice at 455. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal except as to the August 2013 appellant's brief prepared by his accredited representative. The issues of entitlement to service connection of a left eye condition and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have blindness in one eye, having only light perception, and corrected vision in the other eye to 20/50 or worse; the Veteran has macular degeneration with light perception only in this right eye and corrected vision in the nonservice-connected left eye of 20/25 on recent eye examination. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for service-connected right eye disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.79, 4.80, 6007-6070 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA provided the Veteran complete VCAA notice in April 2011 subsequent to the adverse decision from which this appeal arises. However, following provision of all required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in February 2012, affording due process of law. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Moreover, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not demonstrated any prejudicial or harmful error in the VCAA notice. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. All relevant medical records have been obtained and associated with the record. VA afforded the Veteran a VA medical examinations in response to the claim herein decided. The Board previously reviewed the record, determined that the VA examination of record was inadequate, and remanded the case for the purpose of affording the Veteran a new VA examination. The Veteran presented for VA eye examination in March 2011. The Board has reviewed the examination report and finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board finds that the report of examination is adequate for rating purposes as it described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. VA further provided the Veteran a hearing before the Board. In December 2010, the Veteran testified before the undersigned VLJ. At that time, the VLJ held the record open for an additional 60 days for the submission of evidence. Having carefully reviewed the hearing transcript, the Board finds substantial compliance with 38 C.F.R. § 3.103(c)(2); see also, Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, the undersigned VLJ fully explained the issues. The record shows that he correctly identified the issues before him at the beginning of the hearing and then accepted testimony on those same issues. Also, the VLJ suggested the submission of evidence that may have been overlooked. During the Board hearing, testimony was elicited in order to substantiate the claim for a higher rating and questions were asked regarding the existence of outstanding medical evidence. The VLJ provided the Veteran with specific information relevant to a probative medical opinion in support of his claims. The Veteran was assisted at the hearing by his representative. Testimony was obtained as to the severity of the Veteran's disorder during the appeal period. Based on testimony indicating worsening symptoms, the appeal was later remanded by the Board. The hearing focused on the elements necessary to substantiate the claim. Therefore, the Board finds substantial compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the Board will address the merits of the claim. II. Claims for Increase The Veteran seeks an evaluation in excess of 30 percent for service-connected right eye disability (macular degeneration secondary to trauma, with retained foreign body, sclerotic cataract and defective vision with light perception only). He testified that he meets the criteria for a higher evaluation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's service-connected right eye disability is rated under Diagnostic Code 6007-6070. See 38 C.F.R. §§ 4.75 to 4.84a (2008). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 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, in June 2006, the regulatory changes are not applicable to this claim. The overall loss of acuteness or "sharpness"' of vision is determined by applying the criteria set forth at 38 C.F.R. § 4.84a (2008). In making this assessment, the best distant vision obtainable after best correction with glasses will serve as the basis of the rating, except in cases of keratoconus, where lenses are medically required. 38 C.F.R. § 4.75. Under 38 C.F.R. § 4.84a, Diagnostic Codes 6061 through 6079 provide a chart wherein the visual acuity in one eye is compared to the visual acuity in the other eye to achieve the bilateral rating. 38 C.F.R. § 4.84a, Codes 6061-6079, Table V (2008). These criteria provide that the impairment of central visual acuity is to be evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity. Id. 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, Table V (2008). A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity in both eyes is 20/70; (2) corrected visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye is 5/200 and 20/40 in the other eye ; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6070, 6074, 6076, 6077, 6078 (2008). A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6066, 6070, 6073, 6076 (2008). A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is to 20/100 in both eyes; (2) corrected visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes 6065, 6069, 6073, 6076, 6078 (2008). A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/100; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/100; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/100; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/100; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/100 or 20/70 or 20/100, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes 6065, 6069, 6073, 6076 (2008). A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/200; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/200; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/200; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/200; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (2008). An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 15/200 and the other eye is 15/100; (2) corrected visual acuity of one eye is to 10/200 and the other eye is to 15/200; (3) corrected visual acuity of one eye is to 5/200 and the other eye is to 15/200; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 15/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (2008). A 90 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 10/200 and the other eye is 10/100; (2) corrected visual acuity of one eye is to 5/200 and the other eye is to 10/200; or (3) blindness or anatomical loss of one eye and corrected vision in the other eye to 10/200. 38 C.F.R. § 4.84a, Diagnostic Codes 6064, 6068, 6072, 6075 (2008). A 100 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 5/200 and the other eye is 5/100; (2) blindness or anatomical loss of one eye and corrected vision in the other eye to 5/200; or (3) blindness or anatomical loss of both eyes. 38 C.F.R. § 4.84a, Diagnostic Codes 6061, 6062, 6063, 6067, 6071 (2008). Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent for right eye disability. Neither the lay nor the medical evidence more nearly reflects blindness in one eye, having only light perception, and corrected vision in the other eye to 20/50 or worse. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). A December 2008 VA ophthalmology note reflects that the Veteran presented for annual examination-history of retained shrapnel in right eye since 1967 was noted with subsequent light perception only. The examiner indicated that there had been no surgery, and no patching. Posterior vitreal detachment of left eye was noted. Left eye corrected vision was 20/30. The assessment was refractive error of the left eye; foreign body (FB) of right eye, stable; and cataract of left eye, not visually significant. A February 2009 optometry note indicated visual acuity at distance corrected of 20/40+1. Reports of VA eye examinations dated in November 2010 and March 2011 both reflect complaints of light perception only in the right eye, and photosensitivity since 2006. Objectively, in November 2010, there was light perception only in the right eye and left eye had corrected vision of 20/20. In November 2010, the assessment was status post trauma to the right eye while in service leading to light perception vision in the right eye, described as longstanding and stable since 1967. In the March 2011 examination report, the examiner noted that the Veteran reported a lack of compliance with prescriptive glasses and frustration with having to switch between distance and near prescriptions along with a lack of success with bifocals in past. Objectively, there was light perception only in the right eye and left eye had corrected vision of 20/25. There was mild posterior blepharitis of both eyes causing occasional burning sensation of eyes, which the examiner advised him to treat with warm compresses and artificial tears as needed. Here, neither the lay nor the medical evidence more nearly reflects the criteria for a higher rating that currently assigned. 38 C.F.R. § 4.7. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation higher than 30 percent, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Accordingly, the claim is denied. The Board has considered whether a staged rating is warranted, but finds that it is not as the disability did not exhibit symptoms or impairment that would warrant a different rating from that now assigned during the appeal period. See Hart, supra. There is no doubt to resolve. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2013). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disability are contemplated by the schedular criteria. More specifically, the Board observes that the schedular criteria take into account light perception vision in one eye. Therefore, referral for extra-schedular consideration is not warranted ORDER An evaluation in excess of 30 percent for right eye disability is denied. REMAND The Veteran seeks service connection for left eye disability, claimed as secondary to service-connected right eye disability, and TDIU. The Veteran underwent VA eye examination in March 2011. Left eye diagnoses included refractive error secondary to left eye cataract and "early epiretinal membrane formation deemed "likely not contributing to mild decrease in vision." The examiner stated that: It is more likely than not this mild decrease in bcva os is not related to right eye decrease in vision. Furthermore [sic], it is more likely than not that the aforementioned conditions of the left eye (cataract/epiretinal membrane) were not aggravated (permanently worsened) by the patient's service connected right eye disability. The Board finds that the VA medical opinion is inadequate and must be returned to the examiner for a complete rationale that formed the basis for the conclusions reached. A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). With regard to the claim for TDIU, the Board notes that the VA received the Veteran's application for increased benefits based on individual unemployability in October 2010. No further action appears to have been taken. The matter is remanded for appropriate action to include VCAA notice on the issue of TDIU. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should provide the Veteran with VCAA notice on his claim for TDIU. 2. Report of VA eye examination dated in March 2011 should be returned to the examiner for a complete rationale for the opinions reached. The claims files must be made available to and be reviewed by the examiner along with a copy of any pertinent medical records located in Virtual VA that are not in the claims files. The examiner should accept the Veteran's history of symptoms and treatment as truthful unless otherwise indicated by the record. The examiner should restate his/her medical opinion in terms of whether it is as likely as not that left eye disability (diminished visual acuity, cataract, and epiretinal membrane) is due to disease or injury incurred in service or proximately due to or aggravated by service-connected right eye disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the examiner is not available, another appropriate VA eye examiner should be instructed to provide the required information and, if appropriate, opinion with supporting reasons. Another examination of the Veteran should only be performed if determined to be necessary by the person providing the opinion. 3. The RO or the AMC should conduct any other development necessary, and then adjudicate the claims for service connection for left eye disability and TDIU. If the decision remains adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case and given an appropriate period of time to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.2013). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs