Citation Nr: 1409366 Decision Date: 03/05/14 Archive Date: 03/12/14 DOCKET NO. 08-17 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability evaluation in excess of 70 percent for service-connected bilateral eye disability. 2. Entitlement to a higher level of special monthly compensation (SMC) under the provisions of 38 U.S.C.A. § 1114. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service from May 1966 to July 1967. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. A February 2008 rating decision denied a rating in excess of 70 percent rating for the bilateral eye disability. A February 2009 decision, in pertinent part, denied the Veteran's claim for entitlement to SMC based on anatomical loss of the left eye and loss of vision in the right eye under the provisions of 38 U.S.C.A. § 1114(l). By this decision, the RO also continued the denial of an increased rating for the bilateral eye disability. The Board remanded the case to the RO for additional development in April 2013. The case has now been returned to the Board for appellate review. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claims. Virtual VA currently contains evidence that is not already included in the paper claims files-namely VA treatment records dated between 1998 and 2013. FINDINGS OF FACT 1. Throughout the appellate period, the corrected visual acuity in the Veteran's right eye was better than 15/200. 2. Throughout the appellate period, the concentric contraction of the visual field in the Veteran's right eye was six degrees or more. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 70 percent for service-connected bilateral eye disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.84a, Diagnostic Codes 6062 6063, 6064, 6080 (2008). 2. The criteria for SMC at the "l" rate have not been met. 38 U.S.C.A. § 1114 (West 2002 & Supp 2013); 38 C.F.R. § 3.350 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to provide notification to a claimant with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). The notice requirements were accomplished in the December 2007 letter that was provided before the February 2008 initial adjudication of the increased rating claim and in the December 2008 letter that was provided before the February 2009 initial adjudication of the SMC claim. The letters notified the Veteran of the information and evidence needed to substantiate his increased rating and SMC claims. He was told that the evidence must show that his service-connected disability had gotten worse and what was required for a higher level of SMC. The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist a claimant in the development of claims. This duty includes assisting the claimant in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues on appeal has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA outpatient treatment records dated between 1998 and 2013 have been included in the evidence of record. The Veteran was afforded VA examinations in August 2007, January 2009, November 2010, and May 2013, which are adequate because the examining ophthalmologists discussed the Veteran's medical history, described his visual deficits in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Further, there has been substantial compliance with the Board's remand directives, as the RO obtained VA treatment records, provided an examination and issued a supplemental statement of the case. D'Aries v. Peake, 22 Vet. App. 97 (2008). II. The Merits of the Claims In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Increased Rating Claim The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a (2008). Under these criteria, impairment of visual acuity is evaluated from noncompensable to 100 percent based on the degree of the impairment. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). The best distant vision obtainable after best correction by glasses will be the basis of the rating. 38 C.F.R. § 4.75 (2008). During the course of this appeal, VA revised the criteria for rating eye disabilities, effective December 10, 2008. 73 Fed. Reg. 66543 (Nov. 10, 2008). However, these changes apply to applications for benefits received by VA on or after December 10, 2008. Id. Since the Veteran's claims were received before December 10, 2008, the previous rating criteria apply. In this case, the Veteran's service-connected left eye is enucleated and his right eye is also service-connected; he has been assigned a 70 percent evaluation throughout the appeal period. With anatomic loss of one eye, a 70 percent disability rating is warranted when the corrected visual acuity in the other eye is 20/200. An 80 percent rating is warranted for corrected visual acuity in the other eye of 15/200 and a 90 percent rating is warranted for corrected visual acuity in the other eye of 10/200. 38 C.F.R. § 4.84a, Diagnostic Code 6064 (2008). A 100 percent rating is warranted for corrected visual acuity of 5/200 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Code 6063 (2008). Turning to impairment of field vision, the Rating Schedule provides that the extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields 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 38 C.F.R. § 4.76a, Table III (2008). The degrees lost are then added together to determine total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by eight represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2008). Under Table III of 38 C.F.R. § 4.76a, the normal visual field extent at the eight 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 normal total is 500 degrees. The medical evidence fails to show that the Veteran has been diagnosed as having diplopia at any time during this appeal. It also does not show that he has complained of double vision. Therefore, ratings for impairment of muscle function need not be considered. 38 C.F.R. § 4.84a, Diagnostic Code 6090 (2008). The Veteran has been afforded a VA eye examination four times during this appeal. In addition to these examination reports, the record also contains VA treatment records for the period from May 1998 through April 2013. The Board has carefully reviewed all of this evidence; unfortunately, the competent medical evidence fails to demonstrate that the Veteran meets the criteria for a rating in excess of 70 percent for any period of time during this appeal. For the sake of brevity, the Board will not discuss all of the medical evidence. Instead, the Board will discuss the findings demonstrating the highest severity of symptomatology during this appeal and why such evidence does not entitle the Veteran to a higher evaluation. Throughout this appeal the Veteran's right eye distant corrected visual acuity has generally ranged from 20/25 to 20/100. A finding in May 2011 indicated visual acuity of 20/200 in the right eye; this represents the worst visual acuity for the Veteran's right eye during this appeal. Applying the Veteran's most severe corrected vision value for the right eye fails to produce a rating higher than the currently assigned 70 percent. See 38 C.F.R. § 4.84, Diagnostic Codes 6063, 6064. Here, given the left eye enucleation, the corrected visual acuity in the right eye would need to be 15/200 or worse to warrant a rating higher than 70 percent. Even considering the one finding of 20/200 as the corrected visual acuity in the right eye would only yield a 70 percent evaluation, which has already been assigned. Turning to loss of visual field, with application of the directives of 38 C.F.R. § 4.76 (2008) and 38 C.F.R. § 4.76a (2008) to the Veteran's Goldman perimeter test results, contraction of the right eye visual field demonstrated during the Veteran's VA examinations was as follows: contraction to eight degrees in August 2007; contraction to ten degrees in January 2009; contraction to six degrees in November 2010; and contraction to six degrees in May 2013. Under Diagnostic Code 6080 for rating visual field impairment, unilateral concentric contraction to between six and 15 degrees warrants a 20 percent evaluation. Alternatively, unilateral concentric contraction to between six and 15 degrees may be evaluated as the equivalent of corrected visual acuity of 20/200 (6/60). A higher rating for unilateral concentric contraction requires contraction to five degrees and alternatively this level of concentric contraction may be evaluated as the equivalent of corrected visual acuity of 5/200 (1.5/60). The alternative ratings are to be employed when there is ratable defect of visual acuity, or a different impairment of the visual field in the other eye. 38 C.F.R. § 4.84a, Diagnostic Code 6080, Note (2) (2008). In this case, the Veteran has demonstrated unilateral concentric contraction of the visual field of the right eye to between six and ten degrees between August 2007 and May 2013. Applying the alternative rating, the right eye would be assigned an equivalent of corrected visual acuity of 20/200 and this, in turn, would result in the already-assigned 70 percent evaluation under Diagnostic Code 6064 (2008). The Board notes that the August 2007 VA examination report stated that the Veteran had right eye psuedophakia. Under Diagnostic Code 6027, traumatic cataracts are rated as follows: if preoperative, then traumatic cataracts are rated based on impairment of vision; if postoperative, traumatic cataracts are rated based on impairment of vision and aphakia. 38 C.F.R. § 4.84a (2008). Again, the right eye impairment of vision is not equivalent to the 15/200 required for the assignment of an evaluation in excess of 70 percent. The Board acknowledges that the Veteran, in advancing this appeal, believes that the manifestations of his service-connected bilateral eye disability have been more severe than the assigned disability rating reflects. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2013); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Difficulty seeing is an observable event that is amenable to lay observation. In this case, the clinical assessments of record are considered persuasive as to the Veteran's degree of impairment due to the eye disability since they involve specific testing and measurements. The Veteran maintains that he experiences blindness in the right eye. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the loss of visual acuity in the right eye. However, the Veteran's VA treatment records do not reflect that the Veteran is blind in the right eye or has a visual acuity in that eye that is less than 20/200. Furthermore, visual acuity less than 20/200 in the right eye or impairment of the right eye visual field less than six percent has not been found on VA examination. In determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. In any case, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.84a with respect to determining the severity of his service-connected bilateral eye disability. The preponderance of the most probative evidence does not support assignment of any higher rating for the service-connected bilateral eye disability. Since the preponderance of the evidence is against an allowance of any higher evaluation for the service-connected eye disability under the schedular criteria, the benefit of the doubt doctrine is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. With respect to an extraschedular rating under 38 C.F.R. § 3.321 (2013), the applicable rating criteria adequately contemplate the manifestations of the Veteran's bilateral eye disability-namely, enucleation in one eye with loss of visual acuity in the other. The rating criteria are thus adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Furthermore, consideration of a total disability rating based on individual unemployability (TDIU) as per Rice v. Shinseki, 22 Vet. App. 447 (2009) is not appropriate because either TDIU or a schedular 100 percent evaluation has been in effect throughout the appeal period. Finally, based upon the record, the Board finds that at no time during the claim/appellate period has the bilateral eye disability on appeal been more disabling than as currently rated. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified). B. SMC Claim SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C.A. § 1114 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 3.352 (2013). The rate of SMC varies according to the nature of a veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C.A. § 1114(k). Higher levels of SMC are provided at 38 U.S.C.A. § 1114(l), (m), (n), and (o). The Veteran has been granted SMC under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) on account of anatomical loss of one eye, effective from December 31, 1969. (He was recently granted additional special monthly compensation under 38 U.S.C.A. § 1114(s) and 38 C.F.R. § 3.350(i) on account of ischemic heart disease rated 100 percent disabling with additional service-connected disability independently ratable at 60 percent or more effective from August 31, 2010.) The Veteran contends that he is entitled to SMC under 38 U.S.C.A. § 1114(l) because of his bilateral eye disability. The SMC provided by 38 U.S.C.A. § 1114(l) is payable for blindness in both eyes with visual acuity of 5/200. However, evaluation of 5/200 based on acuity in excess of that degree but less than 10/200, does not qualify. Concentric contraction of the field of vision beyond 5 degrees in both eyes is the equivalent of 5/200 visual acuity. The other provisions of 38 U.S.C.A. § 1114(l) are not applicable to the Veteran's case. Based upon the evidence of record detailed above, the Board finds that the Veteran does not meet the criteria for an increased special monthly compensation rate. As discussed above, the evidence of record does not demonstrate that the Veteran's visual acuity in his right eye is less than 20/200. In addition, the evidence of record does not demonstrate that he has concentric contraction of the field of vision in the right eye of five degrees or less. Therefore, the medical evidence does not show that a SMC rate at the "l" level is warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. ORDER Entitlement to a disability evaluation in excess of 70 percent for the service-connected bilateral eye disability is denied. Entitlement to a higher level of SMC under the provisions of 38 U.S.C.A. § 1114 is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs