Citation Nr: 1708211	
Decision Date: 03/17/17    Archive Date: 04/03/17

DOCKET NO.  15-16 389	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to an effective date earlier than October 25, 1991, for the grant of service connection for posttraumatic stress disorder (PTSD), to include on the basis of clear and unmistakable error (CUE).  

2.  Entitlement to an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss, to include on the basis of CUE.

3.  Entitlement to an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  

4.  Whether there was CUE in the March 2015 and May 2015 rating decisions that granted entitlement to service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, effective November 20, 2007.

5.  Entitlement to a rating in excess of 10 percent for tinnitus.  

6.  Entitlement to a rating in excess of 50 percent for bilateral pes planus.

7.  Entitlement to an initial rating in excess of 30 percent for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  

(The issues of entitlement to an annual VA clothing allowance; whether decisions dated prior to July 5, 2000, should be revised or reversed on the grounds of CUE for failing to grant service connection for facial scars; entitlement to an effective date earlier than August 10, 1995, for the grant of service connection for healed scars, right ear, left cheek, and right bridge of nose, residual of injury and surgery; entitlement to an initial compensable rating for healed scars, right ear, left cheek, and right bridge of nose, residual of injury and surgery, between August 10, 1995, and December 1, 2003; entitlement to an initial rating in excess of 10 percent for healed scars, right ear, left cheek, and right bridge of nose, residual of injury and surgery, as of December 2, 2003; entitlement to a rating in excess of 80 percent for bilateral hearing loss; whether a July 18, 2013, Board decision to dismiss a claim for entitlement to an effective date prior to June 8, 1994, for the grant of a 50 percent rating for pes planus contains CUE; and whether a July 18, 2013, Board decision to dismiss a claim for entitlement to an effective date prior to August 10, 1995, for the grant of service connected compensation for tinnitus contains CUE, are addressed in separate decisions.)


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D.V.W., Counsel


INTRODUCTION

The Veteran had honorable active duty service from November 1959 to September 1969.  He is in receipt of a Purple Heart and a Combat Action Ribbon, both of which denote his participation in combat.  

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in February 2015, March 2015 and May 2015.  

The February 2015 rating decision denied entitlement to an effective date earlier than October 25, 1991, for the grant of service connection for PTSD; entitlement to an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss; entitlement to a rating in excess of 10 percent for tinnitus; and entitlement to a rating in excess of 50 percent for bilateral pes planus.  

The March 2015 rating decision granted service connection for defective vision secondary to metallic foreign bodies and assigned a 20 percent rating effective November 20, 2007.  The May 2015 rating decision granted service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, in conjunction with the defective vision secondary to metallic foreign bodies and assigned a 30 percent rating also effective November 20, 2007.  

The Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge on the claims listed on the title page in August 2015.  A transcript is of record.  The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  In June 1992, the RO granted service connection for PTSD, effective from October 25, 1991.  The Veteran did not appeal the assignment of the effective date.

2.  The Veteran has failed to adequately set forth the alleged errors of fact or, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error as it pertains to the claim for an effective date earlier than October 25, 1991, for the grant of service connection for PTSD, on the basis of CUE.

3.  In June 1995, the RO assigned an 80 percent rating for bilateral hearing loss, effective February 7, 1995; the effective date was later amended to June 8, 1994, in October 1995.  The Veteran did not appeal the assignment of the effective date.  

4.  The Veteran has failed to adequately set forth the alleged errors of fact or, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error as it pertains to the claim for an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss, on the basis of CUE.

5.  The Veteran filed an original claim for service connection for vision loss in September 1991; the claim was denied in a February 1992 rating decision, which the Veteran appealed. 

6.  The Board denied the claim for service connection for defective vision, including colorblindness, in an April 14, 1995, decision; the Veteran attempted to appeal the Board's April 1995 decision to the United States Court of Appeals for Veterans Claims (Court), but his appeal was dismissed and the April 14, 1995, Board decision became final.  

7.  The Veteran attempted to reopen his claim but the RO declined to reopen in a January 1999 rating decision, which the Veteran appealed. 

8.  The Board declined to reopen the claim for service connection for defective vision in a March 7, 2007 decision; the Veteran filed a motion to revise or reverse the March 2007 Board decision on the basis of CUE, which was addressed by the Board in a November 2009 decision that denied that claim.  

9.  The Veteran again attempted to establish service connection for vision problems in a statement received November 20, 2007.

10.  Service connection was ultimately established for defective vision secondary to metallic foreign bodies in the March 2015 rating decision that is the subject of this appeal; the May 2015 rating decision granted service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, in conjunction with the defective vision secondary to metallic foreign bodies.

12.  The Veteran did not submit a claim for service connection for defective vision between March 7, 2007, when the Board issued it decision declining to reopen the claim for service connection for defective vision, and November 20, 2007.  

13.  The March 2015 and May 2015 rating decisions that assigned the effective date of November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, was consistent with and reasonably supported by the evidence then of record and the existing legal authority, and did not contain undebatable error that would have manifestly changed the outcome regarding the effective date for the grant of service connection.

14.  The Veteran's tinnitus has been assigned a 10 percent disability evaluation, the maximum rating permitted under the regulations.

15.  The Veteran is in receipt of the maximum rating allowed under Diagnostic Code 5276 for bilateral pes planus.  

16.  The Veteran has exhibited no worse than right eye visual acuity of 20/100 and left eye visual acuity of 20/80; he has never exhibited concentric contraction of the visual field to 5 degrees, bilaterally, 15 degrees or less, bilaterally, or 30 degrees or less, bilaterally.


CONCLUSIONS OF LAW

1.  The June 1992 RO decision that granted service connection for PTSD, effective from October 25, 1991, is final.  38 U.S.C.A. § 7105.

2.  There is no legal entitlement to an effective date earlier than October 25, 1991, for the grant of service connection for PTSD.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

3.  The pleading requirements for a motion for revision based on CUE in the assignment of an effective date of October 25, 1991, for the grant of service connection for PTSD have not been met; thus, the motion must be dismissed without prejudice to refiling.  38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2016).

4.  The October 1995 RO decision that assigned an 80 percent rating for bilateral hearing loss, effective from June 8, 1994, is final.  38 U.S.C.A. § 7105.

5.  There is no legal entitlement to an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

6.  The pleading requirements for a motion for revision based on CUE in the assignment of an effective date of June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss have not been met; thus, the motion must be dismissed without prejudice to refiling.  38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2016).

7.  The criteria for an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

8.  CUE was not committed in the March 2015 and May 2015 rating decisions that assigned an effective date of November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.105 (a) (2016).

9.  There is no legal basis for the assignment of an evaluation in excess of 10 percent for tinnitus.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2016).

10.  The criteria for a rating in excess of 50 percent for bilateral pes planus have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2016).

11.  The criteria for an initial rating in excess of 30 percent for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.84a, Diagnostic Codes 6066, 6069, 6073, 6076, 6080 (2008).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim.  

With respect to the Veteran's assertions that he is entitled to earlier effective dates for the grants of service connection for PTSD and optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, as well as the assignment of an 80 percent rating for bilateral hearing loss and an initial rating in excess of 30 percent for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, the United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

With respect to the Veteran's claims for increased ratings concerning tinnitus and bilateral pes planus, VA's duty to notify was satisfied by a letter in December 2014.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports.  The Veteran was afforded a videoconference hearing before the Board on all issues being adjudicated in this decision and a copy of the transcript is of record.  There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary.  Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Earlier Effective Date Claims

The procedural history involving these claims is complex and requires discussion.  

The Veteran filed a claim for memory loss in October 1991.  A June 1992 rating decision granted service connection for PTSD, and assigned a 30 percent evaluation effective October 25, 1991.  The Veteran appealed the initial rating assigned and in an April 1995 decision, the Board determined that the Veteran was entitled to an initial rating of 50 percent for PTSD.  The Veteran attempted to appeal the Board's April 1995 decision to the U.S. Court of Appeals for Veterans Claims (Court), but it was dismissed.  As such, the Board's April 1995 decision became final.  38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1994).  A rating decision dated in May 1995 implemented the Board's decision and assigned an effective date of October 25, 1991.  

In a June 1995 rating decision, the RO increased the rating assigned for PTSD to 100 percent effective February 7, 1995.  The RO cited a VA Form 21-4138 received on February 7, 1995, in which the Veteran reported "my case is in BVA on appeal for service connection for certain conditions and increased ratings for the conditions already established. While my case is being considered, I would like to request that I be rated for and granted Non Service Connected Pension."  The Veteran listed PTSD as one of the conditions that rendered him disabled.  

A VA Form 21-4138 received at the RO on August 10, 1995, noted the Veteran's disagreement with the Board's April 1995 decision and with the effective date assigned for the 100 percent rating.  The Veteran perfected an appeal.  Before the claim could reach the Board for adjudication, the RO issued a rating decision in October 1995, which amended the effective date for the 100 percent rating for PTSD to June 8, 1994.  This action was based on the RO's determination that it was clearly and unmistakably erroneous that the June 1995 rating decision failed to consider the completed VA Form 21-8940 submitted by the Veteran for a total disability based on individual unemployability (TDIU) received on June 8, 1994.  In an October 1997 decision, the Board denied entitlement to an effective date earlier than June 8, 1994, for the grant of the 100 percent rating for PTSD.  The Board's October 1997 decision is final.  38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1997).

The issue of entitlement to an effective date prior to June 8, 1994, for the grant of the 100 percent rating for PTSD was again before the Board in November 2009, when it was dismissed.  The Veteran filed a motion for reconsideration, which was denied in August 2010.  The Board's November 2009 decision is final.  38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (2009).

The Veteran originally filed a claim for service connection for bilateral hearing loss in August 1973.  See VA Form 21-4138.  Service connection was established in a January 1974 rating decision, which assigned a noncompensable (zero percent) rating for bilateral high frequency hearing loss effective August 30, 1973.  The Veteran filed a claim for increased rating in September 1991, but the noncompensable evaluation was continued in a February 1992 rating decision, which the Veteran appealed.  In an April 1995 decision, the Board also denied entitlement to a compensable rating for bilateral hearing loss.  

In a VA Form 21-4138 received on February 7, 1995, the Veteran reported "my case is in BVA on appeal for service connection for certain conditions and increased ratings for the conditions already established. While my case is being considered, I would like to request that I be rated for and granted Non Service Connected Pension."  The Veteran listed impaired hearing as one of the conditions that rendered him disabled.  The RO increased the rating assigned for bilateral hearing loss to 80 percent, effective February 7, 1995, in a June 1995 rating decision.  The effective date was later amended to June 8, 1994, based on the RO's determination that it was clearly and unmistakably erroneous that the June 1995 rating decision failed to consider the completed VA Form 21-8940 submitted by the Veteran for a TDIU received on June 8, 1994.  See October 1995 rating decision.  

The Veteran filed a claim for vision loss in September 1991.  The claim was denied in a February 1992 rating decision, which the Veteran appealed.  In an April 1995 decision, the Board denied service connection for defective vision, including colorblindness.  The Veteran attempted to appeal the Board's April 1995 decision to the Court, but it was dismissed.  As such, the Board's April 1995 decision became final.  38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1994).  

The Veteran attempted to reopen his claim, but the RO declined to reopen in a January 1999 rating decision, which the Veteran appealed.  In a March 2007 decision, the Board declined to reopen the claim.  The Veteran filed a motion to revise or reverse the March 2007 Board decision on the basis of CUE, which was addressed by the Board in a November 2009 decision that denied that claim.  

The Veteran again attempted to establish service connection for vision problems in a statement received November 20, 2007.  The RO initially declined to reopen the claim in a December 2008 rating decision that the Veteran appealed.  Service connection was ultimately established for defective vision secondary to metallic foreign bodies in the March 2015 rating decision that is the subject of this appeal, which assigned a 20 percent rating pursuant to Diagnostic Codes 6080 and 6066, effective November 20, 2007.  In the May 2015 rating decision, service connection was granted for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, in conjunction with the defective vision secondary to metallic foreign bodies and a 30 percent rating was assigned pursuant to the same diagnostic codes also effective November 20, 2007.  

Pursuant to VA regulation, the Veteran had one year from the date of the notice of the June 1992 rating decision that granted service connection for PTSD and of the October 1995 rating decision that assigned an 80 percent evaluation for bilateral hearing loss effective June 8, 1994, within which to file an application for review with the effective dates assigned.  The claims folder contains no such communication, nor has the Veteran claimed that he submitted a timely application for review regarding the effective dates.  As there was no timely application for review, the June 1992 rating decision establishing October 25, 1991, as the effective date for service connection for PTSD, and the October 1995 rating decision establishing June 8, 1994, as the date on which to assign the 80 percent evaluation for bilateral hearing loss, are final.  38 U.S.C.A. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1995).

The Veteran now seeks entitlement to an effective date earlier than October 25, 1991, for the grant of service connection (and assignment of an initial 50 percent rating) for PTSD; and an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss.  

The Board notes the case of Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision.  Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on CUE.  The Court also held that there can be no freestanding claim for an earlier effective date and that it was error to entertain such a claim.  Rather, the proper course of action would have been to dismiss the appeal.  The Board notes that earlier effective date claims and a claim of CUE are different, mutually exclusive routes to the goal of determining an effective date.  Flash v. Brown, 8 Vet. App. 332 (1995).

As noted above, the Veteran did not voice any disagreement with the RO's assignment of an effective date of October 25, 1991, for the grant of service connection for PTSD or the RO's assignment of an effective date of June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss, within one year following his receipt of the notice letters that accompanied the June 1992 and October 1995 rating decisions.  Therefore, pursuant to the decision in Rudd, the only basis on which to grant an effective date earlier than October 25, 1991, for the grant of service connection for PTSD, and an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss would be a determination there was CUE in the June 1992 and October 1995 rating decisions.

The crux of the Veteran's claim concerning the effective date assigned for the grant of service connection for PTSD hinges on his assertion that CUE has been committed.  

Under 38 C.F.R. § 3.105 (a), a prior final decision can be reversed or amended where evidence establishes "clear and unmistakable error."  For CUE to exist: (1) "[e]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)).

The Court has consistently stressed the rigorous nature of the concept of CUE.  "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts."  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  To constitute CUE, errors must be "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made."  Russell, 3 Vet. App. at 313.  "It must always be remembered that CUE is a very specific and rare kind of 'error.'"  Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  A simple disagreement with how the RO evaluated the facts is not sufficient to raise a valid claim of CUE.  Luallen v. Brown, 8 Vet. App.92, 95 (1995).

The Board also notes that any claim of CUE must be pled with specificity.  See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002).  This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated.  In other words, to present a valid claim of CUE the claimant cannot simply request that the Board reweigh or reevaluate the evidence.  See Crippen v. Brown, 9 Vet. App. 412 (1996).  In order to show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different.  See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999).

The Veteran has submitted a voluminous amount of statements in which he asserts error was committed by the RO.  The allegations are, at times, extremely difficult to decipher, as the Veteran has not coherently laid out arguments in support of his claim.  The essence of his claim on the basis of CUE appears to be based on his assertion that he submitted a VA Form 21-526 in August 1973 that listed PTSD - a claim showing nightmares, memory loss and flashbacks - and that the Columbia, South Carolina, RO failed to adjudicate the claim in November 1974.  The Veteran has also asserted that when he finally received his claims file on June 5, 2008, he found that the Columbia RO had lost his VA Form 21-526; that VA finally adjudicated his claim for PTSD and elevated it to a 50 percent rating back dated to October 1991; that for five years he tried to appeal this claim, but the Manila RO failed to give him a SOC; that VA says that records do not show that an earlier claim for this condition was found; that the Veteran personally hand carried a copy of the VA Form 21-526 to the Manila service center manager and had it date stamped and time stamped received along with three affidavits and an accompanying letter on December 22, 2008; that the RO service center manager had the letter and its attachments destroyed to prevent it from reaching the Board in 2009; and that copies were submitted by the Veteran to the Judge.  See March 2015 email to the Director of the Manila RO.  

The Veteran presented testimony at a Board videoconference hearing in August 2015 on the claim for entitlement to an earlier effective date for the grant of service connection for PTSD, during which he indicated he would like to see it pushed back to 1973 because his symptoms are the same.  

The electronic record contains a VA Form 21-526 that contains three date stamps, namely an August 30, 1973, stamp from the Adm. Div. Mail Room of the Atlanta, Georgia, RO; a September 18, 1973, stamp from the Adjudication Division of the Atlanta, Georgia, RO; and a November 3, 1973, stamp from the Adjudication Division of the Columbia, South Carolina, RO.  In the form received by VA in 1973, the Veteran indicated that he had previously filed a claim for Veterans Educational Assistance (Chapter 33 or 34), but had not filed a VA disability compensation or pension claim.  In the section where the Veteran was to discuss the nature of sickness, disease or injuries for which the claim was made, the Veteran reported loss of hearing in both ears.  No other problems or symptoms were noted.  The date of signature is August 24, 1973.  

The electronic record also contains two VA Forms 21-526 that are date stamped as having been received at the Manila RO on December 22, 2008.  One of the VA Forms 21-526 is an almost identical copy of the VA Form 21-526 discussed in the preceding paragraph, but which does not contain any of the 1973 date stamps and only reflects the December 2008 date stamp.  There are other small differences in the appearance of this document.  The other VA Form 21-526 is purportedly a copy of the document lost by the Columbia, South Carolina RO, which lists, among other things, flashbacks, nightmares and memory loss in the section where the Veteran was to discuss the nature of sickness, disease or injuries for which the claim was made.  Interestingly, the pages on which the Veteran would have dated and signed these VA Forms 21-526 were not submitted on December 22, 2008.  

The Board finds it curious that the Veteran would have filed two separate VA Forms 21-526 in 1973, each listing separate symptoms/problems in the section where the Veteran was to discuss the nature of sickness, disease or injuries for which the claim was made, rather than one VA Form 21-526 that included all of his claims/ symptoms/problems.  The Board also finds it curious that the Veteran was able to procure a copy of the VA Form 21-526 that was purportedly filed in 1973 and which listed flashbacks, nightmares and memory loss in the section where the Veteran was to discuss the nature of sickness, disease or injuries for which the claim was made after he received a copy of his paper claims file following a Freedom of Information Act (FOIA) request to the RO.  Finally, the Board also finds it curious that the VA Form 21-526 that is purportedly a copy of the document lost by the Columbia, South Carolina RO, in 1973 also lists flat feet in the section where the Veteran was to discuss the nature of sickness, disease or injuries for which the claim was made, but that in a July 2000 statement in support of claim, the Veteran asserted that he filed his claim for pes planus in 1992.  The July 2000 statement, which preceded the Veteran's FOIA request and submission of the December 2008 VA Form 21-526, decreases the Veteran's credibility regarding the VA Form 21-526 he claims was purportedly lost by the Columbia, South Carolina, RO, in 1973.  For all these reasons, the Board has determined that in December 2008, the Veteran attempted to submit a copy of a claim that was fraudulently produced.  It appears this action was taken in the Veteran's quest to obtain effective dates earlier than those assigned by the RO in granting several disabilities, to include PTSD.  

In making this determination, the Board acknowledges the three affidavits submitted in December 2008, one from the Veteran and two from individuals who know the Veteran, all of which attest to the fact that the Veteran discovered that records from 1973-1974 and a statement from Lieutenant Commander J.R.M. were missing from the record the Veteran received from the RO in 2008 following his FOIA request.  The content of the affidavits does not bolster the Veteran's credibility and the Board remains of the opinion that the Veteran attempted to submit a copy of a claim that was fraudulently produced in December 2008.  The Board also points out that despite the Veteran's assertions to the contrary, these affidavits, as well as a certified statement dated March 13, 1992, from Lieutenant Commander J.R.M., have been of record since the dates on which they were received, namely March 16, 1992, for the certified statement from Lieutenant Commander J.R.M., and December 22, 2008, for the affidavits of F.M.; S.E.G., Jr.; and the Veteran. 

In regards to how all of this fits in with the Veteran's assertion that CUE was committed in the assignment of the effective date for service connection for PTSD, the Board finds that this assertion does not amount to CUE per VA regulations and case law.  This is so because the Veteran has not asserted that the correct facts were not before the RO when service connection for PTSD was originally established; nor has he asserted that the statutory or regulatory provisions that existed at the time that service connection for PTSD was established were incorrectly applied.  Rather, he hinges his entire argument on his incredible assertion that a claim for service connection for PTSD was missing.  This does not amount to CUE.  See 38 C.F.R. § 3.105 (a); Bustos, 179 F.3d at 1380-1381.  In the absence of a specific allegation that, based on a particular error in application of law or fact, an error undebatably occurred, no valid CUE claim has truly been presented here in reference to the claim for an effective date earlier than October 25, 1991, for the grant of service connection for PTSD.  See Simmons v. Principi, 17 Vet. App. 104 (2003) (To the effect that if the Veteran is only asserting disagreement with how VA evaluated the facts before it, the claim should be dismissed without prejudice because of the absence of legal merit or lack of entitlement under the law).

At this juncture, the Board notes that in support of his contention that the effective date for the grant of service connection for PTSD should be earlier because the Columbia, South Carolina, RO failed to adjudicate a claim, the Veteran has attached a story from a magazine entitled "The Cowboy and the NSO," which is about a Veteran who had a claim that remained pending for many years based on non-adjudication of the claim.  This scenario is manifestly different from the Veteran's case in that the Veteran in that case did not attempt to submit a fraudulent claim for service connection, as the Veteran in this case did in December 2008.  

Since the Veteran has failed to adequately set forth the alleged errors of fact or law, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error, the CUE motion as it pertains to the claim for an effective date earlier than October 25, 1991, for the grant of service connection for PTSD, must be dismissed without prejudice.  See Luallen, 8 Vet. App. at 95; see also Simmons, 17 Vet. App. at 111-15.

In regards to his claim for an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss, the Veteran is essentially asserting that the only accurate hearing test was conducted in 1995 and he wants VA to use this to determine his rating in 1973.  See February 2015 email to the Director of the Manila RO.  He testified in August 2015 that he wanted an earlier effective date for the 80 percent rating for bilateral hearing loss because the most honest hearing test he got was in 1995.  The Board finds that this assertion does not amount to CUE per VA regulations and case law.  This is so because the Veteran has not asserted that the correct facts were not before the RO when it assigned an 80 percent rating for his bilateral hearing loss; nor has he asserted that the statutory or regulatory provisions that existed at the time the RO granted the 80 percent rating were incorrectly applied.  Rather, he hinges his entire argument on his assertion that prior hearing tests were inaccurate.  This does not amount to CUE.  See 38 C.F.R. § 3.105 (a); Bustos, 179 F.3d at 1380-1381.  In the absence of a specific allegation that, based on a particular error in application of law or fact, an error undebatably occurred, no valid CUE claim has truly been presented here in reference to the claim for an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss.  See Simmons, 17 Vet. App. at 110-111.  Even if the Board were to interpret the Veteran's assertion that the only accurate hearing test was that conducted in 1995 as an assertion that the correct facts were not before the RO, this argument does not go to the assignment of the 80 percent rating for bilateral hearing loss established in the October 1995 rating decision that assigned the rating effective June 8, 1994, but would go to the previous rating decisions that assigned and continued a noncompensable rating for bilateral hearing loss.  See January 1974 rating decision; February 1992 rating decision.  Irrespective of how to interpret this unclear assertion, a breach of the duty to assist cannot constitute CUE.  Cook v. Principi, 318 F.3d 1334, 1341 (Fed.Cir.2002) (en banc); see also Crippen v. Brown, 9 Vet. App. 412, 424 (1996) (holding that failure to assist results in an incomplete, rather than an incorrect, record); Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994).

Since the Veteran has failed to adequately set forth the alleged errors of fact or law, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error, the CUE motion as it pertains to the claim for an effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss, must be dismissed without prejudice.  See Luallen, 8 Vet. App. at 95; see also Simmons, 17 Vet. App. at 111-15.

The Veteran also seeks entitlement to an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  

Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (2016).  The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later.  See id.; 38 C.F.R. §3.400 (r) (2016).

Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims.  A formal claim is one that has been filed in the form prescribed by VA.  See 38 U.S.C.A. § 5101 (a) (West 2014); 38 C.F.R. § 3.151 (a) (2016).  An informal claim was considered to be any communication or action indicating an intent to apply for one or more benefits under VA law.  See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1 (p), 3.155(a) (2016). An informal claim needed to be written, see Rodriguez v. West, 189 F. 3d. 1351   (Fed. Cir. 1999), and it had to identify the benefit being sought.  Brannon v. West, 12 Vet. App. 32, 34-5 (1998).

In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157 (b) (2016).  The date of a VA medical record will be accepted as the date of receipt of a claim when such record relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such record.  38 C.F.R. § 3.157 (b). 

The Board now turns to the issue of whether there is any evidence to support the assignment of an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  

Under the law discussed above, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2016).  As such, the RO assigned the earliest possible effective date for its grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, which based on the procedural history as outlined in detail above was November 20, 2007.  See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).

It has been determined that the Veteran's optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, is related to service.  As such, service connection was established.  It does not follow, however, that just because service connection is warranted, the effective date of a grant of service connection should be during the time frame in which the incident that formed the basis of the grant occurred, the day following service, or the date the Veteran filed his original claim, since doing so would render meaningless many of the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400 (q)(1)(ii) [now 38 C.F.R. § 3.400 (q)(2)], which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C.A. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received.  Id. at 1332.  Thus, under the law, there is no basis to assign an earlier effective date for service connection for the optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.

The Board also notes that there is no indication that the Veteran submitted a claim to reopen between March 7, 2007, when the Board issued it decision declining to reopen the claim for service connection for defective vision, and November 20, 2007, when the RO received the request to reopen the previously denied claim.  See 38 C.F.R. §§ 3.151, 3.155 (2016).

For the foregoing reasons, the claim for entitlement to an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, is denied.

The only other means of establishing an earlier effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, is on the basis of CUE.  

The Veteran has submitted several statements in which he asserts error was committed by the RO in assigning an effective date of November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  The allegations are extremely difficult to decipher, as the Veteran has not coherently laid out arguments in support of his claim on the basis of CUE.  In fact, the Veteran has alleged two different, earlier dates on which he contends the grant of service connection should be based, namely October 1991 and August 1973.  In this regard, the Veteran indicated in a March 2015 email to the Director of the Manila RO that the effective date for the grant of service connection for defective vision secondary to metallic foreign bodies should be corrected to October 1991, without explanation as to why.  Based on the procedural history of the claim as discussed above, however, the October 1991 date appears to correspond to the Veteran's legitimate original claim for service connection, which was actually received in September 1991, denied in a February 1992 rating decision that the Veteran appealed, and denied in a now-final April 1995 Board decision.  In another March 2015 email to the Director of the Manila RO, the Veteran asserted that he wanted the grant of service back dated to August 1973, since it is the fault of the Columbia, South Carolina, RO that they lost his VA Form 21-526 and failed to adjudicate his claim (with a notation that this was CUE).  The Veteran testified in August 2015 that he filed an original claim for vision problems in 1973.  

As discussed above, the electronic record contains two VA Forms 21-526 that are date stamped as having been received at the Manila RO on December 22, 2008.  One of the VA Forms 21-526 is purportedly a copy of the document the Veteran alleges was lost by the Columbia, South Carolina RO, in 1973.  This document lists, among other things, "scratchy in the eyes from metal fragments" in the section where the Veteran was to discuss the nature of sickness, disease or injuries for which the claim was made.  Also as discussed above, the Board has determined that in December 2008, the Veteran attempted to submit a copy of a claim that was fraudulently produced.  

The Veteran has raised several other assertions that he is entitled to an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, on the basis of CUE.  These are, again, not easy to decipher and not clearly laid out, and the Veteran does not even specifically identify the March 2015 and/or May 2015 rating decisions as the ones that contain CUE.  In one of the March 2015 emails to the Director of the Manila RO, the Veteran stated that all the evidence presented from 1991 until the present will show that the date of November 20, 2007, is totally wrong; that eye tests from 1991 show optic nerve damage and colorblindness, but were not considered; that an 80 percent rating should be assigned in October 1985, when metal fragments were removed from his eyes, causing optic nerve damage and colorblindness; and that his representative was replaced by someone who had a prior Board judge refuse to accept critical evidence that would have granted the claim.  

Based on this statement, the Board is interpreting the Veteran's claim for an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, as an assertion that the correct facts were not before the RO at the time the March 2015 and May 2015 rating decisions were issued.  The Veteran, however, has not met the second and third requirements provided under 38 C.F.R. § 3.105 (a) in establishing CUE in either of those rating decisions.  More specifically, the alleged error would not have manifestly changed the outcome at the time it was made because, based on the record and law that existed at the time of the March 2015 and May 2015 rating decisions, the Veteran had not established all three elements of a claim for service connection prior to receipt of his November 20, 2007, claim to reopen.  It was not until a January 2015 VA medical opinion that provided a link between the Veteran's current eye conditions and in-service trauma that that element of a claim for service connection was met.  See 38 C.F.R. § 3.303.  The Board's review of the record does not indicate that such opinion was of record in the evidence received prior to the November 20, 2007, claim to reopen.  In fact, the absence of a competent opinion linking the Veteran's eye disorders to service was specifically discussed in the April 1995 Board decision that denied the original claim; the January 1999 rating decision that declined to reopen the previously denied claim; and the March 2007 Board decision that also declined to reopen the previously denied claim.  Moreover, the November 2009 Board decision also determined that the March 2007 Board decision that declined to reopen a claim for service connection for defective vision did not contain CUE as it was consistent with the law and supported by the evidence then of record.  Based on the foregoing, the Veteran's claim for an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, on the basis of CUE is denied.

In regards to the Veteran's assertion that his representative was replaced by someone who had a prior Board judge refuse to accept critical evidence that would have granted the claim, this allegation is not substantiated by the record.  The Veteran has been represented by the Disabled American Veterans since March 1992 (although not by the same Veterans Service Officer), see VA Form 21-22, and the evidence the Veteran alleges was not accepted by a prior Board judge is of record.  

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2016).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

Service connection for tinnitus was granted in an August 1995 rating decision, and an initial 10 percent rating was assigned pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260, effective August 10, 2995.  The Veteran seeks a higher rating.  However, according to VA regulations, a 10 percent evaluation is the maximum schedular rating allowed for tinnitus.  38 C.F.R. § 4.87, Diagnostic Code 6260.  Thus, the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  As there is no legal basis upon which to award a higher schedular evaluation, the appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Service connection for bilateral pes planus was granted in June 1992 rating decision, and an initial noncompensable (zero percent) rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276, effective June 16, 1992.  The rating was increased to 10 percent, effective February 7, 1995, in a June 1995 rating decision.  The effective date assigned for the 10 percent rating was amended to June 8, 1994, in an October 1995 rating decision.  In a May 1999 rating decision, the rating was increased to 50 percent effective June 8, 1994.  The Veteran seeks a higher rating.  However, according to VA regulations, a 50 percent evaluation is the maximum schedular rating allowed for bilateral pes planus.  38 C.F.R. § 4.71a, Diagnostic Code 5276.  As such, the assignment of a rating in excess of 50 percent for bilateral pes planus is impossible under this diagnostic criterion.

The Board has considered the application of other diagnostic codes.  None of the remaining diagnostic codes pertaining to the foot, however, provide for a rating in excess of 50 percent.  Moreover, the Court recently held in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), that when a condition is specifically listed in the rating schedule, it may not be rated by analogy.  See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating...may be assigned only where the service-connected condition is 'unlisted.'").  Given that the Veteran's bilateral pes planus is specifically listed in the rating schedule under Diagnostic Code 5276, the Board finds that this is the appropriate diagnostic code to apply.

As discussed above, service connection was originally established for defective vision secondary to metallic foreign bodies in the March 2015 rating decision that is the subject of this appeal, which assigned a 20 percent rating pursuant to Diagnostic Codes 6080 and 6066, effective November 20, 2007.  In the May 2015 rating decision, service connection was granted for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, in conjunction with the defective vision secondary to metallic foreign bodies and a 30 percent rating was assigned pursuant to the same diagnostic codes also effective November 20, 2007.  Given that the Board has denied the Veteran's claim for an effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, the Board will only considered medical evidence dated from November 20, 2007, forward in deciding whether the Veteran is entitled to an initial rating in excess of 30 percent for the service-connected optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  

Initially, the Board notes that the rating schedule for evaluating disabilities of the eyes was revised and amended effective December 10, 2008.  See 73 Fed. Reg. 66543-54 (Nov. 10, 2008).  The revised criteria apply to all applications for benefits received by VA on or after that date; however, only the old rating criteria may be applied prior to that date.  The Veteran's claim for service connection was received prior to December 10, 2008, and only the old rating criteria are applicable to the instant case.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27 (2016).

Under the criteria in effect prior to December 10, 2008, Diagnostic Codes 6061-6079 contained the criteria to evaluate impairment of central visual acuity.  40 percent evaluations were assigned for anatomical loss of one eye and vision in the other eye of 20/40; blindness in one eye, having only light perception, and vision in the other eye of 20/50; vision in one eye of 5/200 and vision in the other eye of 20/50; vision in one eye of 10/200 and vision in the other eye of 20/50; vision in one eye of 15/200 and vision in the other eye of 20/70; and vision in one eye of 20/200 and vision in the other eye of 20/70.  38 C.F.R. § 4.84a, Diagnostic Codes 6066, 6069, 6073, and 6076.

Under the criteria in effect prior to December 10, 2008, Diagnostic Code 6080 provided the criteria for impairment of field vision.  Under that code, 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 rating, or may be rated as 20/50.  Concentric contraction of the visual field to 5 degrees, results in a 100 percent rating 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 rating, a 20 percent unilateral rating, or is rated as 20/200.  Concentric contraction of the visual field to 30 degrees but not to 15 degrees, bilaterally, results in a 50 percent rating, 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 rating, or is rated as 20/70.  A concentric contraction of the visual field to 60 degrees but not to 45 degrees, bilaterally, results in a 20 percent rating, unilaterally results in a 10 percent rating, or rate as 20/50.  38 C.F.R. § 4.84a, Code 6080.

Demonstrable pathology commensurate with the functional loss will be required.  The concentric contraction ratings require contraction within the stated degrees, temporally; the nasal contraction may be less.  38 C.F.R. § 4.84a, Code 6080, Note (2). 

As to general impairment of visual acuity, the basis for rating for visual impairment will be the best distant vision obtainable after the best correction by glasses.  38 C.F.R. § 4.75.  

As to loss of field of vision, regulations provide that measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated.  The usual perimetric methods will be employed, using a standard perimeter and three millimeter white test object.  At least 16 meridians 221/2 degrees apart will be charted for each eye.  The charts will be made a part of the report of examination and not less than two recordings, and three when possible, will be made.  The minimum limit for this function is established as a concentric central contraction of the visual field to 5 degrees.  This type of contraction of the visual field reduces the visual efficiency to zero.  38 C.F.R. § 4.76. 

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 Table III.  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 8 represents the average contraction for rating purposes.  38 C.F.R. § 4.76a. 

Under Table III of § 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 total is 500 degrees.  

The Veteran seeks an initial rating in excess of 30 percent for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  It appears that his disagreement hinges on his belief that VA is not rating him for colorblindness or optic nerve damage.  In a March 2015 email to the Director of the Manila RO, the asserted that the RO rounded down the vision in one of the eyes instead of rounding up.  The Veteran testified in August 2015 that his vision was pretty constant but his big problem was optic nerve damage and colorblindness, which was not adjudicated.  

At this juncture, the Board notes that the Veteran is service-connected for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  As such, it appears that his assertions that his claims for optic nerve damage and colorblindness were not adjudicated, and that he is not being rated for colorblindness or optic nerve damage, are without merit.  

The medical evidence in this case consists of private and VA treatment records and a VA examination report.

A June 2008 private treatment record from Dr. P. L-C reveals that ophthalmological examination showed visual acuity without correction of 20/50 (J8) in the right eye and 20/40 (J6) in the left eye and visual acuity with correction (reading) of J2 in the right eye and J1 in the left eye.  Refraction in the right eye was +0.75-0.50x90 20/50 add +2.50 J2; refraction in the left eye was +1.00-0.50x90 20/25-2 add +2.50 J1.  Color test showed deficiency in brown to beige system in both eyes.  The diagnosis was cataract (cortical) bilateral, right eye greater than left eye.  Extraction of the right eye cataract was recommended.  

A June 2008 private treatment record from Dr. N.B.M. reveals that ophthalmological examination showed visual acuity of 20/50 (J8) in the right eye and 20/40 (J6) in the left eye and visual acuity with correction of 20/50 (J2) in the right eye and 20/30 (J1) in the left eye.  Refraction was +0.75 sph in the right eye and +1.00 sph in the left eye.  Color test showed difficulty in brown to beige in both eyes.  The impression was right eye cataract.  In a July 2008 certification from this physician, it was noted that there was a clinical impression of optic nerve damage secondary to chronic glaucoma in both eyes.  FDT Threshold testing conducted at NE Eye & Laser Center in July 2008 showed visual acuity in the right eye of 20/30 and in the left eye of 20/25.  

A December 2008 VA ophthalmology consult note documents that visual acuity without correction was 20/60 in both eyes.  Ishihara test showed difficulty distinguishing numbers in green, beige and brown backgrounds.  The assessment was rule out orbital foreign both in both eyes; incipient cataract, both eyes; and dry eye.  

VA treatment records reveal that the Veteran underwent an eye consult in April 2010, at which time visual acuity was 20/100 in the right eye and 20/60 in the left eye.  The assessment was cataracts, right eye more than left, visually significant.  The Veteran underwent surgery for cataract on his right eye on April 26, 2010, and for cataract of his left eye on May 6, 2010.  

A June 2010 VA eye nursing note documents that the Veteran reported his eyesight using both eyes with glasses or contact lenses was poor; that he worried about his eyesight most of the time; and that he had mild pain or discomfort in and around his eyes.  The Veteran indicated that he had moderate difficulty reading ordinary print in newspapers; doing work or hobbies that required him to see well up close, such as cooking, sewing, fixing things around the house, or using hand tools; finding something on a crowded shelf; going down steps, stairs, or curbs in dim light or at night; noticing objects off to the side while you are walking along; seeing how people react to things you say; visiting with people in their homes, at parties, or in restaurants; going out to see movies, plays, or sporting events; driving during the daytime in familiar places; driving at night; and driving in difficult conditions, such as in bad weather, during rush hour, on the freeway, or in city traffic.  He had little difficulty reading street signs or names of stores; and picking out and matching his own clothes.  The Veteran reported that some of the time, he accomplished less than h would like because of his vision; that some of the time, he was limited in how long he could work or do other activities because of his vision; and that most of the time, the pain and discomfort in or around his eyes kept him from doing what he would like to be doing.  

The Veteran underwent a VA eye conditions Disability Benefits Questionnaire (DBQ) in January 2015, at which time diagnoses of optic atrophy, both eyes, related to in-service eye trauma; contracted visual fields, defective color vision, both eyes, related to optic atrophy from in-service eye trauma; and post-surgical pseudophakia, both eyes, were made.  In pertinent part, physical examination revealed visual acuity of 20/50 in the right eye and 20/70 in the left eye for uncorrected distance; and 20/40 or better in both eyes for uncorrected near, and corrected near and distance.  The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse; anatomical loss, light perception only, extremely poor vision or blindness of either eye; corneal irregularity that results in severe irregular astigmatism; or diplopia (double vision).  Regarding the Veteran's visual fields, the examiner indicated that the Veteran had a visual field defect and contraction of a visual field, but not loss of a visual field or scotoma.  The Veteran also did not have legal (statutory) blindness (visual field diameter of 20 degrees or less in the better eye, even if the corrected visual acuity is 20/20) based upon visual field loss.  Other eye conditions noted by the examiner included cataract and other lens conditions; retinal conditions; and neurological eye conditions.  In the remarks section, the examiner reported average concentric contraction in the right eye of 60 degrees temporal; 67 degrees down temporal; 30 degrees down; 44 degrees down nasal; 58 degrees nasal; 28 degrees up nasal; 23 degrees up; and 30 degrees up temporal.  The left eye had average concentric contraction of 45 degrees temporal; 45 degrees down temporal; 32 degrees down; 30 degrees down nasal; 30 degrees nasal; 19 degrees up nasal; 13 degrees up; and 20 degrees up temporal.  A January 2015 fundus fluorescein angiography contained an assessment of choroidal mass consider choroidal nevus, both eyes; and generalized RPE pigmentary degenerative change and parapapillary atrophy, both eyes.  A January 2015 optical coherence tomogram contained an assessment in the right eye of disc photos show a small cup and normal optic nerve head and retinal nerve fiber layer studies; the ganglion cell layer shows structural thinning at the nasal area; consider a central neuropathy or a macular pathology; please correlate clinically; and an assessment in the left eye of disc photos show a small cup with normal optic nerve head studies; the retinal nerve fiber layer shows thinning at a small area in the superotemporal area and the ganglion cell layer shows thinning at the nasal area; these two areas do not correlate well; consider a physiologic thinning of the retinal nerve fiber layer and observe; and consider a central neuropathy for the ganglion cell layer thinning or a maculopathy as the cause; please correlate clinically and with the visual fields.  The examiner also reported that color vision test showed poor color contrast in both eyes, but that the Veteran could recognize both red and green.  

FDT Threshold testing conducted at NE Eye & Laser Center in March 2015 showed visual acuity in the right eye of 20/70 and in the left eye of 20/80.  An analysis report of this testing indicated that the scan of the optic disc showed minimal cupping in both eyes; there was also field constriction to the central 5 degrees in the right eye and rim defects with a defect connecting the blind spot to the center of vision in the left eye.  The result was non-specific neuropathy of both eyes.  

The preponderance of the evidence is against the claim for entitlement to an initial rating in excess of 30 percent for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, under the criteria in effect prior to December 10, 2008, that evaluated impairment of central visual acuity.  This is so because neither of the Veteran's eyes have anatomical loss or blindness, and at no time during the appellate period did the Veteran exhibit corrected vision in one eye of 5/200 or 10/200 with vision in the other eye of 20/50 or vision in one eye of 15/200 or 20/200 with vision in the other eye of 20/70.  Rather, he exhibited corrected vision of 20/50 in the right eye and 20/30 in the left eye, and 20/30 in the right eye and 20/25 in the left eye in June 2008; 20/100 in the right eye and 20/60 in the left eye in April 2010; 20/40 in each eye in January 2015; and 20/70 in the right eye and 20/80 in the left eye in March 2015.  See private and VA treatment records; DBQ.

The preponderance of the evidence is also against the claim for entitlement to an initial rating in excess of 30 percent for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, under the criteria in effect prior to December 10, 2008, that evaluated impairment of field vision.  This is so because although the Veteran exhibited field constriction to 5 degrees in the right eye in March 2015, he did not exhibit contraction of the left eye visual field to 5 degrees at that time so as to support the assignment of a 100 percent rating.  Moreover, during the January 2015 DBQ, the Veteran exhibited concentric contraction of the visual field in the right eye of 42.5 (500 minus 340 (total as reported by examiner) divided by 8) and in the left eye of 33.25 (500 minus 234 (total as reported by examiner) divided by 8).  These findings do not support the assignment of a 50 percent rating under old Diagnostic Code 6080 because the concentric contraction of the visual field was not 30 degrees or less, bilaterally; and they do not support the assignment of a 70 percent rating under old Diagnostic Code 6080 because the concentric contraction of the visual field was not 15 degrees or less, bilaterally.  See 38 C.F.R. §§ 4.76a, 4.84a. 

In sum, the preponderance of the evidence supports the currently assigned 30 percent rating for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies.  

In reaching the above conclusions concerning the claims for increased ratings for tinnitus, bilateral pes planus, and optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the probative evidence is against these claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364   (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56.  

Extraschedular Consideration

The rating schedule represents, as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b) (2016).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).

The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

In this case, the Veteran's disability picture is not so unusual or exceptional in nature as to render the schedular evaluations assigned for any of his service-connected disabilities inadequate. 

The Veteran's service-connected tinnitus is evaluated using the Schedule of Ratings - Ear.  See 38 C.F.R. § 4.87.  The Board acknowledges the Veteran's report during the January 2014 hearing loss and tinnitus DBQ that his tinnitus impaired his ability to sleep.  It finds, however, that all of the Veteran's symptoms associated with the service-connected tinnitus, to include interference with sleep, are contemplated by the Rating Schedule and as a result referral for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The diagnostic criteria utilized in evaluating the Veteran's disability specifically consider recurrent tinnitus perceived in both ears and/or in the head.  And while the Board also acknowledges the Veteran's assertion that he was a concert violinist prior to tinnitus and that he is justified in seeking a 30 percent rating because this caused him to seek another occupation, see May 2015 email to the Director of the Manila RO, it does not find this assertion to be credible, as up until May 2015, the Veteran has consistently reported that when last employed, he was employed as an engineer.  

The Veteran's service-connected bilateral pes planus is evaluated using the Schedule of Ratings - Musculoskeletal System, specifically the criteria related to the foot.  See 38 C.F.R. § 4.71a.  The Board acknowledges the Veteran's assertion that he should be assigned a 90 percent rating for his bilateral pes planus, see March 2015 email to the Director of the Manila RO, and that during the January 2015 foot conditions DBQ, the examiner indicated that the Veteran's pes planus condition of both feet has a severe impact in his ability to do daily physical activities of daily living and concomitant with degenerative joint disease of the left foot, severely limits his ability to do prolonged standing and walking.  The Board finds, however, that all of the Veteran's symptoms associated with the service-connected bilateral pes planus are contemplated by the Rating Schedule and as a result referral for extraschedular consideration is not warranted.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The diagnostic criteria utilized in evaluating the Veteran's disability specifically consider the Veteran's ability to stand and walk based on the severity of the bilateral pes planus.  

The Veteran's service-connected optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, is evaluated using the old Schedule of Ratings - Eye.  See 38 C.F.R. § 4.84a.  The Board finds that all of the Veteran's symptoms associated with the service-connected eye disability are contemplated by the Rating Schedule and as a result referral for extraschedular consideration is not warranted.  Id.  The diagnostic criteria utilized in evaluating the Veteran's disability specifically consider impairment of central visual acuity and impairment of visual fields, and the examiner who conducted the January 2015 eye DBQ indicated that the Veteran's eye conditions did not impact his ability to work.  

Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  The Court in Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), subsequently held that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities.  Neither scenario applies to the instant case.  


ORDER

An effective date earlier than October 25, 1991, for the grant of service connection for PTSD is denied.

The motion for revision based on CUE in the assignment of an effective date of October 25, 1991, for the grant of service connection for PTSD is dismissed without prejudice to refiling.

An effective date earlier than June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss is denied.

The motion for revision based on CUE in the assignment of an effective date of June 8, 1994, for the assignment of an 80 percent rating for bilateral hearing loss is dismissed without prejudice to refiling.

An effective date earlier than November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, is denied.  

Entitlement to revision of the March 2015 and May 2015 rating decisions regarding the assigned effective date of November 20, 2007, for the grant of service connection for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, on the basis of CUE is denied.

An initial rating in excess of 10 percent for tinnitus is denied.

A rating in excess of 50 percent for bilateral pes planus is denied.


An initial rating in excess of 30 percent for optic atrophy, contracted visual fields, defective color vision, and pseudophakia, bilateral eyes, with defective vision secondary to metallic foreign bodies, is denied.  



____________________________________________
KELLI A. KORDICH 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs