Citation Nr: 1452831 Decision Date: 12/01/14 Archive Date: 12/10/14 DOCKET NO. 04-27 916 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a compensable rating for diabetic retinopathy. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD Y. Venters, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the RO. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA and VBMS) claims file associated with the Veteran's claim. The Board has considered these electronic records in its adjudication of the claim in the Veteran's case. FINDINGS OF FACT 1. The Veteran's near visual acuity is, at worst, correctable to 20/70 in one eye and 20/30 in the other. The Veteran's distance visual acuity is, at worst, correctable to 20/40 bilaterally. 2. The Veteran does not have a visual field defect or a condition that may result in visual field defect. CONCLUSION OF LAW The criteria for a compensable rating for diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.31 (2014); 38 C.F.R. §§ 4.75, 4.84, Diagnostic Code 6099-6079 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), 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. 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. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under the VCAA by letters dated in August 2007 and October 2009. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2014). In connection with the current appeal, appropriate examinations have been conducted. We note that the VA examinations were adequate. The examiner reviewed the history, established clinical findings and provided reasons for the opinions. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014). 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 (2014). 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. We conclude that the disability has not significantly changed and a uniform rating is warranted. The Veteran has appealed the denial of a compensable disability rating for his diabetic retinopathy. He contends that his vision has worsened and that a higher evaluation is warranted. The Board notes that service connection for diabetic retinopathy has been established in conjunction with the service connected diabetes mellitus. After review of the evidence, the Board finds against the claim for a compensable rating for diabetic retinopathy. During the course of the appeal, VA revised the criteria for rating eye disabilities; however, the changes only apply to claims for benefits received by VA on or after December 10, 2008. Because the Veteran's claim was received prior to that date, the older criteria apply here, rather than the revised criteria. See 73 Fed. Reg. 66,543-66,554 (November 10, 2008). Prior to December 2008, there was no Diagnostic Code specifically designated for retinopathy, and the Veteran's service-connected disability was evaluated pursuant to Diagnostic Code 6099-6079. As such, the record reflects it was evaluated based upon impairment of visual acuity. Impairment of visual acuity is rated under Table V and Diagnostic Codes 6061-6079, 38 C.F.R. § 4.83a (2008). Visual acuity is rated based upon the best distant vision obtainable after correction by glasses. 38 C.F.R. § 4.75 (2008). The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (in effect prior to December 10, 2008). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. § 4.75. The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a. A noncompensable evaluation is warranted where corrected vision in both eyes is 20/40 and a 10 percent evaluation is warranted where corrected vision is 20/40 in one eye and 20/50, 20/70, or 20/100 in the other eye. A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/70 and vision in the other eye is correctable to 20/50; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/40; or (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/40. Diagnostic Codes 6077, 6078. A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40, or (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40. Diagnostic Codes 6074, 6076, 6077, 6078. A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50, or (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50. Diagnostic Codes 6073, 6076. A 50 percent disability rating is warranted for: (1) corrected visual acuity of one eye 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. Diagnostic Codes 6065, 6069, 6076, 6078. A 60 percent disability rating is warranted for: (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. Diagnostic Codes 6065, 6069, 6073, 6076. A 70 percent disability rating is warranted for: (1) corrected visual acuity to 20/200 in both eyes; (2) corrected visual acuity in one eye to 10/200 and 20/200 in the other eye; (3) corrected visual acuity in one eye to 5/200 and 20/200 in the other eye; or (4) blindness or anatomical loss of one eye and corrected visual acuity to 20/200 in the other eye. Diagnostic Codes 6064, 6068, 6072, 6075. A 100 percent disability rating is warranted for: (1) corrected visual acuity to 5/200, bilaterally; (2) blindness in one eye (having only light perception) and 5/200 in the other eye; (3) anatomical loss of one eye and corrected visual acuity to 5/200 in the other eye; (4) blindness in both eyes having only light perception; or (5) anatomical loss of both eyes. Diagnostic Codes 6061, 6062, 6063, 6067, and 6071. Impairment of field of vision is evaluated pursuant to the criteria found in Diagnostic Code 6080. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (in effect prior to December 10, 2008). Under Diagnostic Code 6080, homonymous hemianopsia of the visual field warrants a 30 percent rating, loss of temporal half of the visual field warrants a 30 percent rating if bilateral, a 10 percent rating if unilateral, or is rated as 20/70. Loss of the nasal half of the visual field bilaterally results in a 20 percent rating, unilaterally results in a 10 percent evaluation, or may be rated as 20/50. Id. Concentric contraction of the visual field to 5 degrees, results in a 100 percent evaluation if bilateral, a 30 percent rating if unilateral, or may be rated as 5/200. Concentric contraction of the visual field to 15 degrees but not to 5 degrees results in a 70 percent bilateral evaluation, a 20 percent unilateral rating, or is rated as 20/200. Id. Concentric contraction of the visual field to 30 degrees but not to 15 degrees, bilaterally, results in a 50 percent evaluation, unilaterally results in a 10 percent rating, or is rated as 20/100. Concentric contraction of the visual field to 45 degrees but not to 30 degrees bilaterally results in a 30 percent rating, unilaterally results in a 10 percent evaluation, or is rated as 20/70. Id. A concentric contraction of the visual field to 60 degrees but not to 45 degrees results in a bilateral evaluation of 20 percent, a unilateral evaluation of 10 percent, or rate as 20/50. Demonstrable pathology commensurate with the functional loss will be required. The concentric contraction evaluations require contraction within the stated degrees, temporally; the nasal contraction may be less. 38 C.F.R. § 4.84a, Diagnostic Code 6080, Note (2). Pursuant to 38 C.F.R. § 4.76, measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. The provisions of 38 C.F.R. § 4.76a explain how ratings are assigned based on impairment of field vision, as follows. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 represents the average contraction for rating purposes. 38 C.F.R. § 4.76a. According to Table III in 38 C.F.R. § 4.76a, the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. The total visual field is 500 degrees. 38 C.F.R. § 4.76a, Table III (2008). VA evaluation of February 2002 noted diabetes with mild retinopathy and bilateral cataracts. Corrected visual acuity was shown as 25/25. VA examination in September 2003 noted the Veteran wears reading glasses. Extra-ocular movements were intact. Pupils were round, equal and reactive to light and accommodation. There was no evidence of decreased visual acuity or evidence to warrant increased evaluation. VA examination in November 2009 revealed the right eye uncorrected near vision 20/30, corrected near vision 20/30. For the left eye, examination revealed uncorrected near vision 20/70, corrected near vision 20/70. The examiner noted the field was full by confrontation and the pupils were round and reactive in both eyes. The examiner diagnosed cataracts in both eyes not related to diabetes and mild diabetic retinopathy in both eyes related to diabetes. In another examination in January 2012, examination for the right eye revealed uncorrected near vision 20/100, uncorrected distance vision 20/40 or better, corrected near vision 20/40 or better and corrected far vision 20/40 or better. For the left eye, examination revealed uncorrected near vision 20/40 or better, uncorrected distance vision 20/70, corrected near vision 20/40 or better and corrected distance vision 20/40 or better. Visual fields, acuity and reaction of pupils to light and accommodation were reported normal. The examiner diagnosed diabetic retinopathy and cataracts in both eyes. In light of the evidence above, the Board finds against a compensable rating for diabetic retinopathy. The Veteran argues that his vision has worsened. The Board finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. The more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned 0 percent evaluation is warranted and no more. In this regard, we note that the examination in November 2009 found that the corrected near visual acuity of the left eye was 20/70 and 20/30 in the right eye. No visual acuity for distance was noted. These findings provided the Veteran's worse corrected visual acuity and warrants a 0 percent rating. Furthermore, the more adequate and most recent examination in January 2012 revealed corrected near vision 20/40 or better and corrected distance vision 20/40 or better. The Board further finds that the record does not reflect the Veteran's service-connected diabetic retinopathy has resulted in impairment of field of vision, to include homonymous hemianopsia; loss of temporal half of the visual field; loss of the nasal half of the visual field; or concentric contraction of the visual field. The January 2012 VA examination stated that the Veteran did not have a visual field defect (or a condition that may result in visual field defect). Also, the November 2009 and January 2012 examinations also stated that the Veteran did not have diplopia. A thorough review of the other evidence of record does not indicate impairment of visual field for either eye. For these reasons, the Board finds that the Veteran does not meet or nearly approximate the schedular criteria (as in effect prior to December 10, 2008) for a compensable rating for his service-connected diabetic retinopathy. The Board also notes that even if it were to evaluate the case based upon the current version of Diagnostic Code 6006 for retinopathy or maculopathy, the claim would still be denied. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). This Code provides that such condition is evaluated based upon either visual impairment or incapacitating episodes, whichever results in the higher evaluation. See 38 C.F.R. § 4.79 (2014). The Veteran's service-connected diabetic retinopathy has already been evaluated based upon impairment of visual acuity, and the current criteria still provides that a noncompensable rating is to be assigned when both eyes are correctable to 20/40 or better distance. Id. Further, the January 2012 VA examiner stated that the Veteran did not have incapacitating episodes as defined by VA regulations, nor is such indicated by the other evidence of record. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the impairment attributable to the Veteran's service-connected diabetic retinopathy. A review of the record indicates this condition is manifested by some degree of visual acuity, manifestations that are contemplated in the rating criteria. A review of the record does not indicate any other symptomatology from this service-connected disability which is not contemplated by the schedular criteria. The rating criteria are therefore adequate to evaluate the Veteran's diabetic retinopathy and referral for consideration of extraschedular rating is not warranted. In conclusion, the evidence is against a compensable rating for diabetic retinopathy. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable evaluation for service-connected diabetic retinopathy is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs