Citation Nr: 1550845 Decision Date: 12/03/15 Archive Date: 12/10/15 DOCKET NO. 14-00 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 10 percent for diabetic retinopathy with bilateral cataracts prior to September 15, 2015. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, denied a rating in excess of 10 percent for service-connected diabetic retinopathy. In August 2015 the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's impairment of visual acuity prior to September 15, 2015 most nearly approximated corrected distance vision of 20/70 in one eye and 20/40 in the other eye. 2. The Veteran's impairment of the field of vision prior to September 15, 2015 most nearly approximated left eye unilateral concentric contraction with a remaining field of 16 to 30 degrees consistent with an equivalent visual acuity of 20/100 and right eye unilateral concentric contraction with a remaining field of 31 to 45 degrees, consistent with equivalent visual acuity of 20/70. CONCLUSION OF LAW The criteria for an award of 40 percent, but not higher, for diabetic retinopathy with bilateral cataracts based on impairment of visual acuity and loss of visual fields are met during the period prior to September 15, 2015. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.25, 4.75-4.79, Diagnostic Codes 6006, 6027, 6066, 6080 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for diabetic retinopathy was awarded in a January 2008 rating decision with an initial 10 percent evaluation assigned effective, May 30, 2007. The April 2010 rating decision on appeal continued the 10 percent evaluation. In October 2015, the service-connected retinopathy was recharacterized to include bilateral cataracts and a 100 percent rating was assigned effective September 15, 2015. The award of a total schedular rating constitutes a full grant of the Veteran's increased rating claim from September 15, 2015. Therefore, the appeal currently before the Board is limited to whether an increased rating is warranted during the period prior to September 15, 2015. The Veteran contends that an increased rating is warranted for his service-connected diabetic retinopathy and cataracts prior to September 15, 2015 as the disability was productive of severe vision loss requiring multiple surgeries. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above, the Veteran was awarded a schedular 100 percent rating for his diabetic retinopathy in an October 2015 rating decision. At that time, the AOJ also changed the diagnostic code used to rate the disability. Prior to September 15, 2015, the Veteran's diabetic retinopathy was rated under Diagnostic Code 6011 for retinal scars, atrophy, or irregularities. This diagnostic code provides for a maximum 10 percent evaluation for retinal scars that result in an irregular image. Alternatively, Diagnostic Code 6011 also allows for rating based on visual impairment if a higher evaluation results. 38 C.F.R. § 4.79, Diagnostic Code 6011. The October 2015 rating decision recharacterizing the service-connected disability to include cataracts changed the diagnostic code used to rate the Veteran's disability to 6006, pertaining to retinopathy or maculopathy. This diagnostic code utilizes a general rating formula for evaluating eye disorders based on incapacitating episodes of acute symptoms severe enough to require prescribed bedrest and treatment by a healthcare provider. 38 C.F.R. § 4.79, Diagnostic Codes 6000-6009. The Board notes that there is no lay or medical evidence of incapacitating episodes in this case, and the general rating formula also provides for rating based on visual impairment. Finally, Diagnostic Code 6027 for postoperative cataracts is also for application in this case, and as with all the other relevant diagnostic codes, provides for rating based on visual impairment. Based on the above, the Board finds that the Veteran's eye disability is most properly rated based on the degree of visual impairment. The Rating Schedule provides several relevant diagnostic codes for evaluating the Veteran's disability and each provides for rating based on visual impairment. The regulations direct that evaluation of visual impairment is to be rated based on the consideration of three factors: 1) impairment of visual acuity (excluding developmental errors of refraction), 2) visual field, and 3) muscle function. 38 C.F.R. § 4.75. However, examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. In this case, the evidence does not indicate impairment to the muscle function of the eyes, and the Board's analysis will therefore focus on impairment to visual acuity and contraction of the visual field. Central visual acuity is evaluated based on corrected distance vision with central fixation. 38 C.F.R. § 4.76. The Veteran is currently in receipt of a 10 percent rating for loss of visual acuity prior to September 15, 2015. To warrant a 20 percent rating based on impairment of central visual acuity, his corrected distance vision must be at least 20/70 in one eye and 20/50 in the other. 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066. Treatment records from the Veteran's VA and private eye doctors do not include findings of corrected distance vision that most nearly approximate 20/70 in one eye and 20/50 in the other. Throughout the applicable claims period the Veteran complained of blurry vision and diagnoses of diabetic retinopathy, macular edema, and bilateral cataracts were rendered. He also underwent several eye surgeries, to include vitrectomies in February 2009 and October 2010. Despite these findings, the Veteran's vision remained better than 20/70 in both eyes throughout the claims period. An August 2009 VA contract examination measured central visual acuity as 20/40 and 20/30 and while treatment records include a finding of 20/70 corrected distance vision in April 2010, the other eye manifested visual acuity of 20/40, consistent with the current 10 percent evaluation. In November 2010, central visual acuity was measured by the Veteran's private physician as 20/70 and 20/30, consistent with a noncompensable evaluation. Thus, the competent medical evidence does not demonstrate impairment to central visual acuity that most nearly approximates a rating in excess of 10 percent prior to September 15, 2015. The Board will now turn to whether an increased rating is warranted based on impairment of the field of vision under 38 C.F.R. § 4.79, Diagnostic Code 6080. If the Veteran's service-connected disability manifests decreased visual acuity and visual field defects in one or both eyes, then each manifestation is separately evaluated and the ratings are then combined under the provisions of § 4.25. 38 C.F.R. § 4.77(c). Under 38 C.F.R. § 4.76a, Table III, the normal visual field extent at the 8 principal meridians totals 500 degrees. The normal for the 8 principal meridians are as follows: 85 degrees temporally; 85 degrees down temporally; 65 degrees down; 50 degrees down nasally; 60 degrees nasally; 55 degrees up nasally; 45 degrees up; and 55 degrees up temporally. Id. 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. Id. Under Diagnostic Code 6080, a 10 percent rating is assigned for a unilateral scotoma; with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. 38 C.F.R. § 4.79 (2015). The Veteran clearly experienced a significant loss of his bilateral visual field during the period prior to September 15, 2015. In a June 2009 letter, the Veteran's private eye doctor identified a marked visual defect in the right eye and a moderate visual field defect in the left eye. The service-connected retinopathy's overall severity was also characterized as marked. The August 2009 VA contract examiner also noted that the Veteran had limited peripheral vision in the right eye with significant and permanent ocular damage. Unfortunately, no physician ever provided the results of visual field testing that are valid for VA rating purposes prior to a September 2015 VA contract examination. The September 2015 examination report included a full description of the Veteran's remaining visual fields in each of the principal meridians. In the October 2015 rating decision assigning a 100 percent rating for the Veteran's disability, the RO found that the Veteran's loss of visual field in the September 2015 VA contract examination was consistent with a 30 percent evaluation. This rating was combined with the evaluation for impairment of visual acuity to arrive at the overall 100 percent rating effective from September 15, 2015. The medical evidence dated prior to September 15, 2015 indicates that the Veteran experienced significant loss of the bilateral visual field, but does not contain findings consistent with VA's rating criteria. The Board will therefore resolve all doubt in favor of the Veteran and find that the results of the September 2015 VA contract examination are consistent with the Veteran's loss of visual field throughout the claims period, which documents multiple eye surgeries, loss of vision, and marked visual field impairment. The criteria pertaining to impairment of the visual fields notes that ratings can be assigned based on concentric contraction or based on an equivalent visual acuity. The RO determined that the Veteran's left eye manifested a unilateral concentric contraction of the visual field with a remaining field of 16 to 30 degrees consistent with an equivalent visual acuity of 20/100. The right eye manifested a unilateral concentric contraction of the visual field with a remaining field of 31 to 45 degrees, consistent with equivalent visual acuity of 20/70. This is consistent with a 30 percent evaluation under 38 C.F.R. § 4.79, Diagnostic Code 6080. As noted above, 38 C.F.R. § 4.77(c) provides that the separate ratings for decreased visual acuity and visual field defects should be combined under the provisions of § 4.25. The Veteran's loss of visual acuity is consistent with a 10 percent evaluation, while his visual field defect is consistent with a 30 percent evaluation. These ratings combine to 40 percent under the combined ratings table in § 4.25. The Board therefore finds that the Veteran's service-connected diabetic retinopathy warrants an increased 40 percent evaluation during the period prior to September 15, 2015. The Board has considered whether there is any other schedular basis for granting a higher rating higher than that already assigned, but has found none. In addition, the Board has considered the doctrine of reasonable doubt in its decision to assign a higher schedular disability rating during the applicable claims period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (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 extra-schedular 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 extra-schedular 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). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's diabetic retinopathy is manifested by cataracts and impairment to visual acuity and the bilateral visual fields. These manifestations are contemplated in the rating criteria. The rating criteria are adequate to evaluate the disability on appeal and the record does not demonstrate an exceptional circumstance where the evaluation of the individual condition fails to capture all the symptoms of the service-connected disability. Id. Entitlement to a TDIU is also an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable due to service-connected retinopathy. He has not alleged that he is unable to work due to his service-connected retinopathy and the Board observes that he is currently in receipt of a total disability rating from February 2014 due to a combination of service-connected disabilities. Therefore, remand of a claim for TDIU is not necessary as there is no specific lay or medical evidence of unemployability due to the service-connected eye disability. Duties to Notify and Assist VA has certain duties to notify and assist a veteran in the substantiation of a claim. VA 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a July 2009 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the July 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided a VA contract examination in August 2009. Although the August 2009 VA examination did not include specific findings regarding the Veteran's impairment to the bilateral visual fields associated with retinopathy, the Board has used the results of the September 2015 VA examination to determine the appropriate rating for this aspect of the service-connected disability. Thus, the record contains evidence sufficient to rate all aspects of the Veteran's diabetic retinopathy. The Board also finds that VA has complied with the August 2015 remand orders of the Board. In response to the Board's remand, the Veteran was provided a VA contract examination in September 2015 fully describing all manifestations of his diabetic retinopathy and finding that the bilateral cataracts and impairment of the visual fields are related to the service-connected disability. The September 2015 VA contract examination also formed the basis of the 100 percent evaluation awarded in the October 2015 rating decision. The remaining claim for an increased rating prior to September 15, 2015 was readjudicated in the October 2015 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating of 40 percent, but not higher, for diabetic retinopathy with bilateral cataracts prior to September 15, 2015 is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs