Citation Nr: 1336860 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-11 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for right eye status post traumatic iritis, retinal dialysis, sclera buckle and cryo, with status post lens implant causing pseudoaphakia due to removal of traumatic cataract with secondary glaucoma (right eye disability). 2. Whether new and material evidence has been received to reopen a claim of service connection for a desmoid tumor of the right flank. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served in the United States Army Reserve with an initial period of active duty for training from August 1988 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 and April 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The increased rating issue was remanded for further development by the Board in June 2009 to obtain private treatment records, VA treatment records, and a VA eye examination. The issue was remanded again in August 2011to provide legally compliant notice, obtain VA treatment records, and to afford the Veteran a VA eye examination. A review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the appeal previously before the Board only involved the issue of entitlement to an increased disability rating for the Veteran's service-connected eye disability. Subsequent to the last remand issued in August 2011, the Veteran perfected an appeal on his claim to reopen for service connection for a desmoids tumor of the right flank. (See September 2012 VA Form 9.) As for the issue of entitlement to a TDIU, the Board notes that this issue was included as part of the Veteran's appeal for an increased disability rating for his service-connected eye disability after he filed a VA Form 21-8940, application for increased compensation based on unemployability, in December 2011. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). This issue was included for the first time in the Supplemental Statement of the Case issued in April 2012. The issues of whether new and material evidence has been received to reopen a claim of service connection for a desmoid tumor of the right flank and entitlement to a 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's right eye disability is not manifested by enucleation or a serious cosmetic defect. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for a right eye disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.84a, Diagnostic Code 6029 (2007); 38 C.F.R. §§ 3.159, 3.321, 4.7 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist as set forth in 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). By letters dated in February 2006, October 2011, and December 2011 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, what information and evidence that VA would try to obtain. Furthermore, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. The Board also finds that there has been compliance with VA's duty to assist. The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in February 2006, November 2009, and November 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking a higher disability rating for his service-connected right eye disability, which is currently characterized as right eye status post traumatic iritis, retinal dialysis, sclera buckle and cryo, with status post lens implant causing pseudoaphakia due to removal of traumatic cataract with secondary glaucoma . The Board notes that the rating criteria for diseases of the eye were amended effective December 10, 2008, and are applied to all applications for benefits received by VA on or after December 10, 2008. 73 Fed. Reg. 66550 (Nov. 10, 2008). As the Veteran filed his claim in February 2005, the rating criteria in effect prior to December 10, 2008 are applicable to the claim. The Veteran has been assigned a 30 percent evaluation for his right eye condition under Diagnostic Code 6029 for aphakia. Whether unilateral or bilateral, the 30 percent rating prescribed for aphakia is a minimum rating to be applied and is not to be combined with any other rating for impaired vision. When only one eye is aphakic, the eye having poorer corrected visual acuity will be rated on the basis of its acuity without correction. When both eyes are aphakic, both will be rated on corrected vision. The corrected vision of one or both aphakic eyes will be taken one step worse than the ascertained value, however, not better than 20/70 (6/21). Combined ratings for disabilities of the same eye should not exceed the amount for total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. 38 C.F.R. § 4.84a, Diagnostic Code 6029 Note. Under the pre-revision rating criteria, disabilities rated under Diagnostic Codes 6000 to 6009 (which includes the criteria for evaluating iritis under Diagnostic Code 6003) were to be evaluated 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. 38 C.F.R. § 4.84a, Diagnostic Code 6000 to 6009 (2007). Visual acuity was evaluated under Diagnostic Codes 6061 through 6079. Evaluations for impairment of the visual fields were accomplished using Diagnostic Codes 6080 and 6081. Finally ratings for impairment of muscle function were conducted using Diagnostic Codes 6090 through 6092. 38 C.F.R. § 4.84a (2007). Furthermore, under 38 C.F.R. § 4.80 (2007), combined ratings for disabilities of the same eye should not exceed the total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. The maximum rating for total loss of vision of only one eye, without anatomical loss of the eye, is 30 percent. See 38 C.F.R. § 4.84a, Diagnostic Code 6070 for evaluation of blindness in one, having light perception only, with visual acuity in the other eye of 20/40 (6/12). The Board takes judicial notice that enucleation is the same as anatomical loss of an eye. See Dorland's Illustrated Medical Dictionary, 31st Edition, p. 635 ("enucleation" defined as "the removal of an organ, of a tumor, or of another body in such a way that it comes out clean and whole, like a nut from its shell. Used in connection with the eye, it denotes removal of the eyeball after the eye muscles and optic nerve have been severed."). The Board notes that both the Note to Diagnostic Code 6029 and § 4.80 limit the combined rating for disabilities involving the same eye to 30 percent. As the Veteran's service-connected eye disability is already rated at 30 percent, an increased schedular rating is only available if there is an enucleation or a serious cosmetic defect. The Veteran was afforded VA examinations in February 2006, November 2009, and November 2011. Additionally, he has had regular eye exams and treatment at the VA Medical Center. The results of those examinations do not demonstrate the Veteran has anatomical loss of the right eye (i.e., enucleation) or any serious cosmetic defect of the right eye. Furthermore, the Veteran has not claimed that he has any cosmetic defect affecting the right eye. Consequently, the Board finds that a schedular disability rating higher than 30 percent for the Veteran's service-connected right eye disability is not warranted under either Diagnostic Code 6029 or the codes related to impairment of visual acuity, visual fields or muscle function. In addition, the Board has considered whether a higher disability rating is warranted under any alternative Diagnostic Codes. A part of the Veteran's right eye disability includes glaucoma. Under Diagnostic Code 6012, congestive or inflammatory glaucoma with frequent attacks of considerable duration during continuance of actual total disability warrants a 100 percent disability rating. In the alternative it may be rated as iritis under Diagnostic Code 6003, which only provides a minimum rating of 10 percent during active pathology. 38 C.F.R. § 4.84a (2007). Under Diagnostic Code 6013, simple, primary, noncongestive glaucoma is rated on impairment of visual acuity or field loss with a minimum rating of 10 percent. Id. The record at no point indicates the Veteran has congestive or inflammatory glaucoma with frequent attacks of considerable duration. Therefore, a 100 percent rating under Diagnostic Code 6012 is not warranted. Furthermore, Diagnostic Code 6013 does not provide for a higher disability rating unless it is based upon impairment of visual acuity or field loss, which as previously discussed is limited to a 30 percent disability rating. Consequently, the Board finds that no alternative Diagnostic Code provides for a disability rating higher than the present 30 percent. In addition, a claim must be referred to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's eye disability is manifested by pseudoaphakia, visual acuity impairment, and visual field impairment. Although the Veteran has complained of pain in the eye, he reported that it rarely causes incapacitation. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of symptomatology is consistent with the degree of disability addressed by the schedular rating criteria as discussed above. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently noted that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C.A § 1114; 38 C.F.R. § 3.350. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). In the present case, the medical evidence shows that the Veteran's right eye disability is manifested by no less than corrected visual acuity of 20/200. See VA examinations from February 2006 and November 2009. Furthermore, the Veteran's visual fields are restricted to no less than 30 degrees of tunnel vision in the right eye. See VA examination from November 2011. Consequently, the Board finds that the Veteran service-connected right eye disability is not productive of blindness having only light perception or visual fields decreased to 5 degrees or less. Nor does the evidence demonstrate that the Veteran is in need of actual aid and attendance or is homebound (to include having one disability rated as 100 percent disabling with additional disabilities with a combined rating of 60 percent) as a result of service-connected disabilities. As such, the provisions of 38 U.S.C.A. § 1114 and 38 C.F.R. § 3.350 relating to blindness in one eye are not met and SMC was not warranted. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against finding that a disability rating in excess of 30 percent is warranted. As the preponderance of the evidence is against this claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal is denied. ORDER Entitlement to a disability rating in excess of 30 percent for right eye status post traumatic iritis, retinal dialysis, sclera buckle and cryo, with status post lens implant causing pseudoaphakia due to removal of traumatic cataract with glaucoma is denied. REMAND In Kent v. Nicholson, 20 Vet.App. 1 (2006), the Court addressed directives consistent with VCAA with regard to new and material evidence. The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The only VCAA letter associated with the desmoids tumor claim is the December 2011 letter. This letter addresses the issue as a service connection issue and not as a new and material evidence issue. Therefore, the Board finds that the Veteran did not have sufficient notice regarding the issue of whether new and material evidence has been received to reopen a claim of service connection for a desmoid tumor of the right flank. In this case, the Veteran contends that he is unable to secure substantially gainful employment due to his service-connected disabilities. The outcome of the Veteran's claim to reopen for service connection for desmoid tumors may affect the disabilities considered under his TDIU claim; therefore, these claims are inextricably intertwined. Thus, a decision by the Board on the claim for a TDIU would, at this point, be premature. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VA notice under Kent v. Nicholson, 20 Vet.App. 1 (2006). The VA notice should advise the Veteran of what evidence is necessary to reopen the issue of entitlement to service connection for desmoid tumors of the right flank. The Veteran should be informed of the basis for the prior denial and the definition of new and material evidence, as well as what evidence he could submit that would be material to his claim for service connection. 2. After completion of the above and any other development deemed necessary, readjudicate the Veteran's claims, to include his claim of entitlement to a TDIU in light of the decision rendered on his claim to reopen for service connection for desmoids tumors of the right flank. The Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ SARAMAE KREITLOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs