Citation Nr: 1801425 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 09-38 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for bilateral open angle glaucoma with left paracentral scotoma, status post bilateral cataracts, assigned a 30 percent rating effective October 1, 2007, a 50 percent rating effective May 5, 2008, and a 70 percent rating effective November 14, 2013, exclusive of periods of temporary total evaluations. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Douglas E. Sullivan, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to July 1996. These matters come to the Board of Veterans' Appeals (Board) from March 2008, March 2009, and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. The Veteran and his then spouse testified before the undersigned Veterans Law Judge at a travel Board hearing in August 2013. The transcript is of record. The Board previously remanded these matters in July 2014 for further development. They have now returned for adjudication. Additional evidence in the form of the Veteran's vocational rehabilitation file has been added to the claims folder since the last supplement statement of the case. A remand is not warranted, however, as the only pertinent records in the file are medical records that are duplicative of those considered by the Regional Office. FINDINGS OF FACT 1. For the period prior to May 5, 2008, the Veteran's bilateral eye disability resulted in no worse than 20/30 visual acuity and 35 degree field average in the right eye and 20/60 visual acuity and 40 degree field average in the left eye. 2. For the period between May 5, 2008, and November 14, 2013, the Veteran's bilateral eye disability resulted in no worse than 20/30 visual acuity and 35 degree field average in the right eye and 20/150 visual acuity and 35 degree field average in the left eye. 3. For the period from November 14, 2013, forward, the Veteran's bilateral eye disability resulted in no worse than 20/40 visual acuity and 35 degree field average in the right eye and 5/200 visual acuity and loss of the nasal and superior halves of the visual field in the left eye. 4. The Veteran's functional loss from his eye disabilities is either contemplated by the rating criteria or does not exhibit other factors provided as governing norms. 5. The Veteran's auditory threshold does not exceed 40 decibels for any one, or 26 decibels for at least three, of the 500, 1000, 2000, 3000 or 4000 frequencies, and the Veteran's speech recognition scores exceed 94 percent. CONCLUSIONS OF LAW 1. The criteria for an increased rating for bilateral eye disabilities in excess of 30 percent prior to May 5, 2008, 50 percent from May 5, 2008 to November 14, 2013, and 70 percent rating from November 14, 2013, exclusive of periods of temporary total evaluations, have not been met under both the schedular and extra-schedular criteria. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.75, 4.76, 4.76a, 4.77, 4.79 Diagnostic Codes 6013, 6064, 6065, 6066, 6080 (2017). 2. The criteria for entitlement to service connection for hearing loss have not been met. 38 C.F.R. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail. On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). ISSUE 1: Increased Rating for the Eyes Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Schedular Ratings The Veteran has been service connected for bilateral open angle glaucoma with bilateral cataracts. Under diagnostic code 6013, open angle glaucoma is to be rated based on visual impairment. Visual impairment is rated under diagnostic code 6080 in various alternatives depending on the field loss according to the following: Visual Field Defects Homonymous hemianopsia 30 Loss of temporal half of visual field Bilateral 30 Unilateral 10 Or evaluate each affected eye as 20/70 Loss of nasal half of visual field Bilateral 10 Unilateral 10 Or evaluate each affected eye as 20/50 Loss of inferior half of visual field Bilateral 30 Unilateral 10 Or evaluate each affected eye as 20/70 Loss of superior half of visual field Bilateral 10 Unilateral 10 Or evaluate each affected eye as 20/50 Concentric contraction of visual field: With remaining field of 5 degrees: Bilateral 100 Unilateral 30 Or evaluate each affected eye as 5/200 With remaining field of 6 to 15 degrees Bilateral 70 Unilateral 20 Or evaluate each affected eye as 20/200 With remaining field of 16 to 30 degrees Bilateral 50 Unilateral 10 Or evaluate each affected eye as 20/100 With remaining field of 31 to 45 degrees Bilateral 30 Unilateral 10 Or evaluate each affected eye as 20/70 With remaining field of 46 to 60 degrees Bilateral 10 Unilateral 10 Or evaluate each affected eye as 20/50 In addition, the Veteran's loss of visual acuity is rated under one of diagnostic codes 6061 to 6066. Visual acuity is rated based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b). VA examined the Veteran's eyes in November 2007. The Veteran's best corrected distance visual acuity was 20/30 in the right eye and 20/60 in the left eye. His best corrected near vision was better than his distance vision. He did not at that time have a loss of half of any visual field, but did have a reduction in his average concentric contraction of the visual field. See 38 C.F.R. § 4.77(b). The average field was approximately 40 degrees in his left eye and 35 degrees in his right eye. The Veteran's visual acuity was properly rated as non-compensable. Visual acuity is based upon the combined effects of both eyes, and a 20/30 better eye is not compensable under the rating schedule. The Veteran's remaining visual field was properly rated at 30 percent. The same rating is available under either diagnostic code 6080 directly, or as evaluating each eye as 20/70 using diagnostic code 6066. The 30 and 0 percent are combined pursuant to 38 C.F.R. § 4.77(c) to a 30 percent overall rating. The Veteran was assigned a 30 percent rating at the time. An increased rating is not warranted for that period. VA examined the Veteran's eyes again in May 2008. The Veteran's best corrected distance vision was 20/30 in the right eye and 20/150 in the left eye. The Veteran's best corrected near vision was 20/50 in the right eye and 20/200 in the left eye. The difference does not amount to two or more schedular steps. Field of vision measurements, if made, are not of record. The schedular rating for visual acuity of 20/30 and 20/150 is non-compensable. Although not warranted here, rounding up each score to the next worse level would still only yield 20 percent. Combined with the Veteran's earlier field of vision of 30 percent, these two scores combine to 40 percent. The Veteran was provided with a 50 percent evaluation effective May 5, 2008, the date of the examination. A higher rating is not warranted. Although a field of vision examination should have been performed at the May 2008 examination, as will be explained below, the November 2010 VA examination showed that the field of vision had remained within the same evaluation band of the schedular ratings. Applying the 30 percent rating for field of vision was appropriate. VA examined the Veteran's eyes in December 2010. The Veteran's best corrected distance visual acuity was 20/70 in the right eye and 20/100 in the left eye. His corrected near visual acuity was better in both eyes. The Veteran's field of vision was not completely absent in any half of the visual field, and his average field of vision was approximately 35 degrees bilaterally. The Veteran's 20/70 and 20/100 visual acuity correspond to a 30 percent rating. The Veteran's field of vision limitation corresponds to a 30 percent rating under both the schedule and the visual acuity equivalent. These scores combine to 50 percent. The Veteran was rated at 50 percent for this period, and that rating was appropriate. VA examined the Veteran's eyes in November 2013. He had corrected distance vision of 20/40 or better in the right eye and 5/200 in the left eye. Corrected near distance vision was the same. The Veteran had lost the nasal half of his right field and had no field in the left eye. The average field of vision was approximately 40 degrees in his right eye. The diagnostic code provides a 30 percent rating for a visual acuity of 5/200 and 20/40. For the field of vision, the Veteran may be rated as one of (1) 10 percent for bilateral nasal half loss, (2) 30 percent for bilateral central loss less than 45 degrees, (3) 10 and 30 percent for loss of right nasal half and less than 5 degrees central acuity left eye, (4) 10 and 30 for less than 45 degrees right eye and less than 5 degrees left eye, or (5) 50 percent by rating the right eye as 20/70 and the left eye as 5/200. The last measure represents the highest rating and should be applied. A 30 percent and a 50 percent combine for 70 percent. The Veteran was rated 70 percent for his eyes from November 14, 2013, the date of this examination. The rating was appropriate and a higher rating is not warranted. VA examined the Veteran's eyes in April 2015. His corrected distance acuity was 20/40 or better in the right eye and 5/200 in the left eye. His corrected near vision was the same. The Veteran had no more than light perception in his left eye. His right eye had a loss of the nasal and superior halves of his visual field. His average field of vision was approximately 36 degrees in his right eye. Although the diagnostic code for visual acuity has changed from 6065 to 6064, the rating remains at 30 percent based on the better (right) eye. In addition, although the average field of vision decreased a few degrees, it did not change steps in the rating criteria. The correct rating for field of vision loss therefore remained at 50, for a combined total of 70 percent. The Veteran's rating remains appropriate. The evidence, including medical records, also included a history of treatment for the Veteran's eye disabilities. These treatment records, however, were consistent with the measurements and statements made in the VA examinations and did not provide a basis for varying from the measurements made by the VA examiners. As the Veteran's visual acuity and field of vision most closely match the disability ratings assigned, an increased schedular rating is not warranted. Extra-schedular Rating The Veteran's representative raised the issue of the appropriateness of an extra-schedular rating. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is adequate, and no extra-schedular referral is required. Id. Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation as "governing norms" such as marked interference with employment and frequent periods of hospitalization. The Veteran testified in August 2013 that after surgery in 2007 he had trouble reading mail and performing activities required for him to be a mail carrier. He said that he had to miss work one to three days a month depending on the month. He also testified to burst blood vessels in his eyes that led to dry eyes and trouble sleeping, and that the low vision clinic made for him such as a knife protector and tags to put on things. Most of the Veteran's identified complaints related to problems inherent with low visual acuity and low field of vision. Reading mail is a prime example. The rating criteria are based on and take into consideration the inability to see clearly and widely. The functional effects of the inability to see are therefore contemplated by the schedule. Burst blood vessels, on the other hand, may not be accounted for in the rating schedule to the extent that they do not affect visual clarity or field of vision. The Veteran's burst blood vessels, and subsequent dry eyes, however, did not result in hospitalization or marked interference with employment. The Veteran testified that his combined eye problems caused him to occasionally miss work. Marked interference with employment is more than occasional missed work. It is a definite pattern of noticeable loss of employment opportunity. The Veteran ultimately had such a loss, but it was due to factors such as his visual clarity and field of vision, not the burst blood vessels and dry eyes. The Veteran's medical records and VA examinations also noted a few functional limitations, such as limitations on driving, limitations on self-reliance, and limitations on reading and seeing objects. The schedular ratings, however, account for these limitations through the combined loss of visual acuity and loss of field of vision tables. A referral for an extra-schedular rating is not warranted. ISSUE 2: Bilateral Hearing Loss Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Begmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). VA regulations define hearing loss as one of the following: (1) when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA examined the Veteran's hearing in July 2010. The Veteran did not have hearing thresholds above 30 Hertz and only one frequency was 26 Hertz or greater in each ear. The Veteran's speech recognition scores were more than 94 percent for both ears. These results do not meet the VA definition of hearing loss. The Veteran's medical records since the July 2010 examination do not suggest that the Veteran has hearing loss either. The records do not contain audiology results more than the definitional limits, nor do they contain frequent complaints of difficulty hearing or understanding speech. As the Veteran has not been diagnosed with hearing loss under VA regulations at any time during the appeal period, service connection must be denied. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). ORDER Entitlement to an increased rating for bilateral open angle glaucoma with left paracentral scotoma, status post bilateral cataracts, assigned a 30 percent rating effective October 1, 2007, a 50 percent rating effective May 5, 2008, and a 70 percent rating effective November 14, 2013, exclusive of periods of temporary total evaluations, is denied. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs