Citation Nr: 1622516	
Decision Date: 06/03/16    Archive Date: 06/13/16

DOCKET NO.  11-33 444	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire

THE ISSUES

1.  Entitlement to a separate, compensable, rating for bilateral (left and right eye) retinopathy associated with Type II Diabetes Mellitus.

2.  Entitlement to an effective date earlier than March 24, 2009, for an initial 10 percent rating for bilateral open-angle glaucoma associated with the Type II Diabetes Mellitus and consequent diabetic retinopathy.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran-Appellant

ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to June 1969.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In support of his claims, the Veteran testified at a hearing at the RO in June 2013 before the undersigned Veterans Law Judge of the Board (Travel Board hearing).  A transcript of the hearing has been associated with the claims file, so is of record

In a January 2015 decision the Board, in effect, waived the requirement of the timely filing of a Substantive Appeal (VA Form 9 or equivalent statement) concerning the Veteran's claim for a separate, compensable, rating for the bilateral retinopathy associated with his Type II Diabetes Mellitus.  However, the Board also determined that further development of this claim was needed before ultimately deciding this claim on its underlying merits, so the Board remanded this claim to the Agency of Original Jurisdiction (AOJ).

Conversely, also in that January 2015 decision, the Board denied the remaining claim for an effective date earlier than March 24, 2009, for an initial 10 percent rating for bilateral open-angle glaucoma associated with the Type II Diabetes Mellitus and consequent diabetic retinopathy.  The Veteran appealed the denial of this other claim to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In February 2016, the Court granted an October 2015 Joint Motion for Remand (JMR) filed by the parties, so vacated the Board's January 2015 decision to the extent it had denied this other claim and remanded this claim back to the Board for further development and readjudication in compliance with directives specified.
 


FINDINGS OF FACT

1.  The Veteran's representative initially filed a claim on January 30, 2008, for a separate and distinct disability (diabetic retinopathy) that VA grouped along with the Veteran's service-connected Type II Diabetes Mellitus.  Attached to the representative's submission was a statement from the Veteran that he attached additional progress notes showing further progression of the peripheral retina disability eye claim.

2.  Subsequently, a September 2009 rating decision recharacterized the Veteran's claim for a separate, compensable, rating for the bilateral retinopathy associated with his Type II Diabetes Mellitus to include bilateral open-angle glaucoma effective February 26, 2009.

3.  The Veteran filed his claim for service connection for bilateral open-angle glaucoma associated with his service-connected Type II Diabetes Mellitus and consequent diabetic retinopathy on March 17, 2009, which was granted in a June 2011 rating decision.

4.  The medical evidence reflects that continuous medication was required in the form or eye drops and Travatan prior to January 2008.

5.  At worst, the Veteran has 20/40 corrected distance vision in both eyes.  Furthermore, he does not have visual field impairment attributable to his bilateral retinopathy.



CONCLUSIONS OF LAW

1. The criteria are met for an earlier effective date of January 30, 2008, though no earlier, for the initial 10 percent rating for the bilateral open-angle glaucoma associated with the Type II Diabetes Mellitus and consequent diabetic retinopathy.  38 U.S.C.A. §§ 1155, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.115, 3.159, 3.160, 3.400, 3.385, 4.79, Diagnostic Code 6013 (2015).

2.  The criteria are not met, however, for a separate compensable rating for the bilateral retinopathy.  38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.75, 4.76, 4.76a, 4.84a, Diagnostic Codes (DCs) 6008, 6061-6080 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Notice and Assistance

VA has duties to notify and assist a claimant in developing and substantiating a claim for benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  Here, though, the Board is granting the earlier-effective-date claim, so need not discuss whether there has been compliance with these preliminary notice and duty to assist obligations.  This is because even were the Board to assume, for the sake of argument, there has not been this compliance, this still would be inconsequential and at most amount to nonprejudicial, i.e., harmless error.  Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009).  See also 38 C.F.R. § 20.1102 (2015).


As for the remaining claim for a separate, compensable, rating for the bilateral (left and right eye) retinopathy associated with Type II Diabetes Mellitus, standard VA form letters and procedures have satisfied the duty to notify for many years.  And such is the case for this claim since VA provided the required notice letter concerning this claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Legal Criteria and Analysis

Entitlement to an Effective Date Earlier than March 24, 2009, for an Initial 10 percent rating for Bilateral Open-Angle Glaucoma Associated with Type II Diabetes Mellitus and Consequent Diabetic Retinopathy

The Veteran contends that his service-connected bilateral open-angle glaucoma should be assigned an earlier effective date of January 30, 2008, the date he testified that he filed this claim.  In the prior adjudication (since vacated by the Court), the Board determined that the date of receipt of the Veteran's claim for bilateral open-angle glaucoma associated with his service-connected Type II Diabetes Mellitus and consequent diabetic retinopathy instead was March 17, 2009, and this additional benefit was granted in a subsequent June 2011 rating decision.  

The Board also found that the Veteran initially had filed a claim for a separate, compensable, rating for bilateral diabetic retinopathy associated with his already service-connected Type II Diabetes Mellitus on January 30, 2008.  In a September 2009 rating decision, the RO recharacterized the Veteran's claim for a separate, compensable, rating for the bilateral retinopathy associated with his Type II Diabetes Mellitus, to include the additional complication of bilateral 
open-angle glaucoma, noting an effective date of February 26, 2009, effectively construing his diagnosis of open-angle glaucoma initially as an increased-rating clam.  The Veteran subsequently filed a claim for service connection for bilateral open-angle glaucoma associated with his service-connected Type II Diabetes Mellitus and consequent diabetic retinopathy on March 17, 2009, which as mentioned was granted in the June 2011 rating decision.

In denying this earlier-effective-date claim in the prior January 2015 decision, the Board determined the Veteran's January 2008 submission could not be construed, even liberally, as a claim of entitlement to service connection for the bilateral 
open-angle glaucoma associated with the already service-connected Type II Diabetes Mellitus and consequent diabetic retinopathy.  The Board did not see the required intent to file a claim additionally for the bilateral open-angle glaucoma, only instead a request to receive additional compensation in they of an increased rating for the already service-connected, and underlying, Type II Diabetes Mellitus and consequent retinopathy.

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2015).  Generally, and except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015).

Importantly, 38 C.F.R. § 3.400(b)(2)  provides that if a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later.  Otherwise, any subsequent grant of benefits cannot be any earlier than the receipt of the eventually-filed claim.

The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  And "date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r) (2015).  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal 

communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p) (2015).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).

The benefit sought must be identified, but need not be specific.  See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).

The Court (CAVC) previously has held that a claimant's identification of the benefit sought does not require any technical precision.  See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows the symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of Title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.").  A claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).

Here, in correspondence received by VA on January 30, 2008, the Veteran, through his representative, noted his intent on receiving compensation for a separate and distinct disability in regards to his eye.  His representative further requested that a VA medical examination be conducted assessing the Veteran's alleged separate and distinct disability.  Separate and distinct disability is compensated separately since this does not run afoul of VA's anti-pyramiding regulation, 38 C.F.R. § 4.14.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (explaining that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition).

In another correspondence received on January 30, 2008, the Veteran informed VA of medical progress notes supporting his eye claim.

After additional review of the claims file, the Board finds that entitlement to an effective date earlier than March 24, 2009, for the initial 10 percent rating for the bilateral open-angle glaucoma associated with the Type II Diabetes Mellitus and consequent diabetic retinopathy is warranted.  As a result of this further review, the Board finds that, while the Veteran did not provide a specific diagnosis in his January 30, 2008 correspondences, they did however inform VA of his intent to obtain compensation for a separate and distinct eye disability, meaning separate and distinct from his Type II Diabetes Mellitus and, at least arguably, also separate and distinct from the consequent diabetic retinopathy.  Further, the September 2009 rating decision granted his claim for service connection for bilateral open-angle glaucoma, but added it to his already service-connected Type II Diabetes Mellitus.  That September 2009 rating decision was partly based on medical records reflecting his diagnosis of open-angle glaucoma and concession that glaucoma, like retinopathy, is a common problem, i.e., complication in diabetics.  See Clemons v Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider the claimant s description of the claim, the symptoms the claimant describes, and the info ation the claimant submits or that the Secretary obtains in support of the claim).

Additionally, the Veteran's glaucoma is evaluated under 38 C.F.R. § 4.84a, Diagnostic Code (DC) 6013.  Diseases of the eye are now rated under a General Rating Formula, under 38 C.F.R. § 4.79 (2015).  Open-angle glaucoma is to be evaluated based on resultant visual impairment. A minimum evaluation of 10 percent is assigned if continuous medication is required.  38 C.F.R. § 4.79, Diagnostic Code 6013.

VA progress notes reflect that the Veteran was prescribed eye drops and Travatan for treatment of his bilateral open-angle glaucoma.  (See December 2007 progress notes). 

Similarly, VA medical treatment records indicate the Veteran was prescribed eye drops for treatment of his bilateral open-angle glaucoma.  (See VA progress note dated March 24, 2009).

During the Veteran's June 2009 VA examination, corrected visual acuity was 20/50 in his left eye.  His right eye vision was not tested at that time, but the examiner noted that the Veteran used eye drops for treatment of this disability.  The same VA examiner conducted another examination of the Veteran in September 2009.  During that additional VA examination, the corrected distant vision was 20/40 in the left eye and 20/20 in the right eye.

With all of this in mind, and in hindsight, the Board finds that the Veteran satisfactorily identified he sought compensation benefits for an eye disability distinct and separate from his already service-connected Type II Diabetes Mellitus and even the consequent retinopathy.  Further, the medical evidence reflects that continuous medication was required in the form or eye drops and Travatan.  As such, he is entitled to an earlier effective date of January 30, 2008, though no earlier, for the initial 10 percent rating for the bilateral open-angle glaucoma associated with his Type II Diabetes Mellitus and consequent diabetic retinopathy.

Entitlement to a Separate, Compensable, Rating for Bilateral (Left and Right Eye) Retinopathy Associated with Type II Diabetes Mellitus

The Veteran contends that he is entitled to a separate, compensable, rating for his bilateral diabetic retinopathy.

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015).  Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2015).  When 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 (2015).  All reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3 (2015).


In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when the current appeal arose from the initially-assigned rating, consideration must be given as to whether a "staged" rating should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  The Court since has extended this practice even to established ratings, so not just initial ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2009).

Note (1) in 38 C.F.R. § 4.119, Diagnostic Code 7913, indicates to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation.  Conversely, noncompensable complications are considered part of the diabetic process under DC 7913.

Bilateral retinopathy is rated based on visual impairment under 38 C.F.R. § 4.79, Diagnostic Codes 6026-6080.  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.  38 C.F.R. § 4.27(2015).

Impairment of visual acuity is rated noncompensable when there is vision in one eye of 20/40 and vision in the other eye of 20/40, with higher ratings for additional disability.  38 C.F.R. § 4.79, Diagnostic Code 6066.

Visual acuity is generally evaluated on the basis of corrected distant vision.  See 38 C.F.R. § 4.76.

To determine the evaluation for visual impairment when there is both decreased visual acuity and visual field defect in one or both eyes and are service-connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of § 4.25.


The report of a recent, March 2016, VA medical examination reflects that the Veteran has corrected distance vision of 20/40 or better in his right eye and 20/40 or better in his left eye, so bilaterally.  Further, the examination report indicates he does not have anatomical loss, astigmatism, or diplopia.  Additionally, this examiner concluded the Veteran does not have a decrease in visual acuity or other visual impairment owing to his retinopathy.  The examination report notes no incapacitating episode attributable to the retinopathy.  Lastly, the examination report explains the retinopathy does not affect the Veteran's visual field.

The report of another VA medical examination just approximately one year earlier, in April 2015, contains similar findings.  The Veteran had the same corrected distance vision of 20/40 or better in his right eye and 20/40 or better in his left eye.  Further, the examination report indicates he did not have anatomical loss, astigmatism, or diplopia.  The examiner also concluded the Veteran did not have a decrease in visual acuity or other visual impairment owing to his retinopathy.  Further, that prior examination report explains there were no incapacitating episodes attributable to the Veteran's retinopathy.

The report of an even earlier February 2011 examination shows corrected distance vision of 20/25 in the Veteran's right eye and 20/25 in his left eye, as well as corrected near vision of 20/20 in his right eye and 20/20 in his left eye.  Further, the examination report does not reflect a visual field defect attributable to his retinopathy.  There equally was no suggestion of any incapacitating episodes.

As this evidence dating back the last several years does not show the Veteran has compensable visual impairment attributable to his bilateral retinopathy, a separate compensable rating is not warranted for the retinopathy.  Instead, as dictated by DC 7913, the rating for the retinopathy is considered part and parcel of the diabetic process, so the retinopathy is rated concurrently with the underlying diabetes under DC 7913, not instead as an additional disability because no additional disability (at least to a compensable level) has been shown to exist.


Extra-schedular Consideration

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See Thun v. Peake, 22 Vet. App. 111 (2008).  38 C.F.R. § 3.321(b)(1).

Here, though, the Board finds that the symptoms associated with the Veteran's bilateral retinopathy and, in turn, his underlying diabetes are specifically contemplated within the applicable diagnostic codes.  In short, the rating criteria reasonably describe the extent of his symptoms and consequent impairment, including especially in terms of the effect (or lack thereof) on his visual acuity.

Moreover, the evidence does not reflect that the Veteran's disability has met the second prong of the Thun test (i.e., the additional requirement of marked interference with employment or frequent periods of hospitalization).  In this circumstance, referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. 


ORDER

An earlier effective date of January 30, 2008, is awarded for the grant of service connection for the bilateral open-angle glaucoma associated with the Type II Diabetes Mellitus and consequent diabetic retinopathy, subject to the statutes and regulations governing the payment of retroactive compensation.

However, a separate, compensable, rating for the bilateral (left and right eye) retinopathy associated with the Type II Diabetes Mellitus is denied.


REMAND

Total Disability Rating for Compensation Purposes based on Individual Unemployability (TDIU)

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and, therefore, is part and parcel of a claim for an increased rating for that disability, not instead a separate claim.

Here, evidence in the file does not indicate the Veteran has been unable to obtain or maintain substantially gainful employment because of his bilateral retinopathy, specifically.  Indeed, to the contrary, evidence in his claims file reflects that the bilateral retinopathy, itself, does not adversely impact his ability to work.  (See the May 2016, April 2015, and February 2011 VA medical examination reports).  There must be cogent evidence of unemployability in the record.  See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).

Further concerning this, however, one must also consider a January 2016 private Vocational Employability Assessment that the Veteran's attorney submitted in February 2016, wherein S. G. concluded the Veteran is unemployable due to his service-connected disabilities combined.  This statement therefore was not only addressing the impact of the underlying diabetes, but also its several attendant complications - namely, peripheral neuropathy of both upper and lower extremities, also the open-angle glaucoma.  The statement was not exclusive to the retinopathy, even accepting that it, too, is a complication of the diabetes.

That notwithstanding, the Veteran, through his attorney, has filed a formal claim for a TDIU, including by completing an application (VA Form 21-8940) in February 2016 and submitting it along with this private Vocational Employability Assessment, as well as a Social Security Earnings Statement.


Thus, under Rice, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is predicated, at least partly, on the service-connected disability for which the Veteran is requesting a higher (i.e., compensable) rating in this appeal.  The RO or Appeals Management Center (AMC), however, though the Agency of Original Jurisdiction (AOJ), has not had opportunity to consider whether the Veteran is additionally entitled to a TDIU, and it would be potentially prejudicial to him for the Board to consider this additional issue in the first instance.  Bernard v. Brown, 4 Vet. App. 384 (1993); Godfrey v. Brown, 7 Vet. App. 398 (1995).  Moreover, if, as here, the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim, although this does not (so did not) preclude the Board from going ahead and deciding the claim that formed the basis of the derivative TDIU claim.  See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001).  For these reasons, the Board is remanding this derivative TDIU claim to the RO via the AMC in Washington, DC, for the necessary initial development and consideration.  Whereas the Board, instead, went ahead and decided the claim for a separate, compensable, rating for the retinopathy that partly for the basis of this derivative TDIU claim.

Accordingly, this derivative TDIU claim is REMANDED for the following development and consideration:

Once all necessary preliminary notice and development has been completed, adjudicate the derivative TDIU claim.  If this claim is denied, or not granted to the Veteran's satisfaction, send him and his attorney another SSOC (specifically concerning this additional claim) and give them opportunity to respond to it before returning the file to the Board for further appellate consideration of this derivative claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim being remanded 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. 2013).



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs