Citation Nr: 1759956	
Decision Date: 12/22/17    Archive Date: 01/02/18

DOCKET NO.  14-06 085	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to a compensable disability rating for vitreous floaters, status post-concussion.


REPRESENTATION

Veteran represented by:	Jan Dils, Attorney at Law


WITNESSES AT HEARING ON APPEAL

Veteran and B.M.


ATTORNEY FOR THE BOARD

Polly Johnson, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1977 to May 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania which, in part, continued a noncompensable disability rating for vitreous floaters.

In December 2015, the Veteran testified at a videoconference hearing.  A transcript of the proceeding has been associated with the claims file.

As for the matter of representation, the Board observes that, in April 2017, the Veteran submitted a VA Form 21-22a (Appointment of Individual as Claimant's Representative) in which he appointed Jan Dils, Attorney at Law, as his representative.  The Board recognizes this change in representation.

During the course of the appeal, in a September 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to a total disability rating based on individual unemployability (TDIU), effective June 18, 2009.  As such is a full grant of the benefits sought on appeal with respect to such claim, and the Veteran has not appealed the effective date assigned to the grant of TDIU, that matter is not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).


FINDING OF FACT

The Veteran does not have visual impairment or incapacitating episodes due to his vitreous floaters, status post-concussion.




CONCLUSION OF LAW

The criteria for a compensable rating for vitreous floaters, status post concussion, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.6, 4.7, 4.79, Diagnostic Codes 6009, 6066.


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper VCAA notice 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; and (3) that the claimant is expected to provide.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

The Veteran was provided pre-adjudication notice in January 2009 regarding how to substantiate the claim for an increased rating.  The Veteran was also told how VA would assist him in obtaining additional relevant evidence and how VA determines the effective date and disability rating.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim.  38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4).

In the present case, the Board finds that the duty to assist has been fulfilled.  He has been examined (in April 2009, May 2013, March 2015, and August 2016).  The reports of those examinations, taken together with other evidence of record, contain descriptions of impairment sufficient for the proper evaluation of his eye disability.  There is no suggestion on the current record that there is any other evidence outstanding.  As such, no further development action is required.

Finally, in March 2016, the Board remanded the case and directed the AOJ to schedule the Veteran for a VA examination.  The AOJ did so and readjudicated the issue on appeal in a September 2017 supplemental statement of the case.  For these reasons, the Board's prior remand instructions have been substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

II. Relevant Laws and Regulations

Disability ratings 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

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 Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

III. Analysis

The Veteran's vitreous floaters, status post-concussion disability is rated as noncompensable under 38 C.F.R. § 4.84a, Diagnostic Code 6009-6079.  The hyphenated code was intended to show that the Veteran's eye disability had symptoms of an unhealed eye injury (Diagnostic Code 6009) and decreased visual acuity (Diagnostic Code 6079).

However, the regulations concerning eye disabilities based on impairment of central visual acuity were amended effective December 10, 2008.  The accompanying changes to the diagnostic codes apply to claims filed on or after this date, which will instead be rated under Diagnostic Codes 6061 to 6066.  See 73 Fed. Reg. 66543-54 (Nov. 10, 2008).  In this case, the Veteran's claim was received in January 2009.  As such, the earlier rating criteria do not apply to this case, and the Veteran will be rated according to the new regulations concerning unhealed eye injury and impairment of central visual acuity.  38 C.F.R. § 4.79, Diagnostic Codes 6009, 6061-6066.

To that end, the evidence of record does not show that the Veteran experiences the anatomical loss of both eyes, no more than light perception in both eyes, the anatomical loss of one eye, or no more than light perception in one eye at any time during the rating period on appeal.  As such, the provisions of Diagnostic Codes 6061 through 6064 are not applicable to the Veteran's claim.  38 C.F.R. § 4.79, Diagnostic Codes 6061-6064.  Diagnostic Code 6065 is similarly inapplicable, as there is no evidence that the Veteran experienced visual acuity with vision in one eye at 5/200 during the rating period on appeal.  38 C.F.R. § 4.79, Diagnostic Code 6065.  Accordingly, the Veteran is most properly rated under Diagnostic Code 6066 at this time.  

In making this distinction, the Board notes that the amended rating criteria per Diagnostic Code 6066 are the same as the prior rating criteria under Diagnostic Code 6079.  Compare 38 C.F.R. § 4.84a, Diagnostic Code 6079 (2008) (in effect prior to December 10, 2008) with 38 C.F.R. § 4.79, Diagnostic Code 6066 (2017).  As such, the Veteran is not prejudiced by the change in diagnostic code used to rate his vitreous floaters.  See Butts v. Brown, 5 Vet. App. 532 (1993) (stating that the Board may choose the diagnostic code to apply provided the choice is supported by reasons and bases, as well as the evidence).  

Under Diagnostic Code 6066, the Veteran may only be awarded a 10 percent disability rating if there is evidence of corrected visual acuity as follows: (1) 20/100 in one eye and 20/40 in the other eye; (2) 20/70 in one eye and 20/40 in the other eye; (3) 20/50 in one eye and 20/50 in the other eye; or (4) 20/50 in one eye and 20/40 in the other eye.  

Accordingly, the Board will analyze the evidence of record against the rating criteria set forth above.  The Board notes that it has reviewed all of the evidence in the Veteran's claims file, placing an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence).

The May 2013 VA examination report reports the Veteran's corrected distance visual acuity as 20/40 or better in the right eye and 20/40 or better in the left eye.

The March 2015 VA examination report reports the Veteran's corrected distance visual acuity as 20/40 or better in the right eye and 20/40 or better in the left eye.

The August 2016 VA examination report reports the Veteran's corrected distance visual acuity as 20/40 or better in the right eye and 20/40 or better in the left eye.

Thus, the evidence of record throughout the rating period on appeal shows that the Veteran's visual acuity was no worse than 20/40 in both eyes.  Accordingly, the Board finds that a compensable rating for vitreous floaters, status post-concussion, is not warranted under Diagnostic Code 6066.

The Board notes that the Veteran's eye disability is also rated under Diagnostic Code 6009, which contemplates an unhealed eye injury and is rated under a General Rating Formula.  Under that formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months.  Higher ratings under Diagnostic Code 6009 are available but not applicable given the facts of this case.  Indeed, the May 2013, March 2015, and August 2016 VA examination reports all noted that the Veteran did not have any incapacitating episodes over the prior 12 months attributable to any eye condition.  Accordingly, a compensable rating under Diagnostic Code 6009 is not warranted.

The Veteran is competent to report symptoms he experiences, to include floaters, blurriness, and light sensitivity, and the Board finds him to be credible.  However, his reports do not identify pathology or impairment that meets the schedular criteria for a compensable rating for vitreous floaters, status post concussion.  The specific issue in this case, whether the Veteran's visual impairment meets the specific criteria set forth in the rating criteria falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F .3d 1372, 1377 n.4 (Fed. Cir. 2007).  The rating criteria are the results of an eye examination and measurement of visual acuity that is performed by the examining clinician.  The Veteran in this case has not been shown by the evidence of record to have the training or skills needed to conduct a visual acuity examination.  The competent and credible evidence of record does not support a finding that the specific visual impairment criteria are met under 38 C.F.R. § 4.79, Diagnostic Code 6066 or 6009.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for vitreous floaters, status post-concussion.


ORDER

Entitlement to a compensable rating for vitreous floaters, status post-concussion, is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs