Citation Nr: 1805710 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-28 457A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for blindness in the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from February 1953 to January 1955. These matters are before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded these matters in April 2015, May 2016, and September 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's vision in his nonservice-connected right eye is not rated at a visual acuity of 20/200 or less and is not limited to a peripheral field of vision of 20 degrees or less. 2. The Veteran has no more than light perception in the service-connected left eye. 3. Throughout the relevant rating period, the Veteran has been in receipt of a 30 percent rating for his service-connected blindness in the left eye, which is the maximum rating for visual impairment in one eye where there is not anatomical loss of the eye. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for blindness in the left eye are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.383(a)(1), 4.3, 4.7, 4.14, 4.21, 4.75, 4.76, 4.79, Diagnostic Code 6064 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to notify was satisfied by a letter dated in November 2011. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The Veteran's VA treatment records and identified and available private treatment records have been obtained and associated with the record. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided VA examinations in April 2012, May 2015, and January 2017. The examiner who conducted the examinations tested the Veteran's vision, considered the Veteran's reported symptomatology, and provided the medical information necessary to address the rating criteria in this case. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds the examinations to be adequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not alleged, and the record does not show, that his service-connected blindness of the left eye has increased in severity since the January 2017 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time is not a basis for requiring a new examination). Rather, the Veteran contends only that a higher disability rating is warranted. As such, the Board finds that the examinations of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. There is no indication in the record that any additional evidence, relevant to the claim adjudicated in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Compliance with Board Remand As noted in the Introduction, the Board remanded this case in April 2015, May 2016, and September 2017. The April 2015 Board remand directed the Agency of Original Jurisdiction (AOJ) to undertake appropriate development to obtain any outstanding relevant medical records, afford the Veteran a VA examination to determine the nature and severity of his service-connected left eye blindness, and then readjudicate the claim and issue a supplemental statement of the case, if warranted. Pursuant to the April 2015 Board remand, the AOJ obtained the Veteran's outstanding VA treatment records, sent the Veteran a letter in May 2015 asking him to identify and authorize release of any outstanding relevant private treatment records, provided the Veteran a VA eye examination in May 2015, and readjudicated the issue in a June 2015 supplemental statement of the case. The Veteran did not respond to the May 2015 letter. Accordingly, the Board finds that VA at least substantially complied with the April 2015 Board remand. The May 2016 Board remand directed the AOJ to undertake appropriate development to obtain any outstanding relevant medical records; obtain the result of Goldman visual field testing at the May 2015 VA examination or, if no such testing was conducted, provide the Veteran another VA examination including visual field testing; and then readjudicate the claim and issue a supplemental statement of the case, if warranted. Pursuant to the May 2016 Board remand, the AOJ obtained the Veteran's outstanding VA treatment records and sent the Veteran a letter in June 2016 asking him to identify and authorize release of any outstanding relevant private treatment records. In addition, the Veteran underwent a VA eye examination in January 2017, and the AOJ readjudicated the issue in a July 2017 supplemental statement of the case. The Veteran did not respond to the June 2016 letter. The Board notes that the January 2017 VA eye examination did not include visual field testing because, as explained by the VA examiner in a March 2017 addendum, the Veteran does not have a history of visual field loss or any ocular conditions that would cause visual field loss. The relevant regulations state that examination of visual fields will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect. 38 C.F.R. § 4.75(b). As such, the Board finds that the January 2017 VA examination provides all of the information necessary to address the relevant rating criteria and substantially completes the May 2016 Board remand directives despite not including visual field testing. The September 2017 Board remand directed the AOJ to obtain all outstanding relevant VA treatment records, specifically to include a full copy of an October 28, 2016 VA eye treatment visit note referenced by the January 2017 VA examiner, and then readjudicate the claim and issue a supplemental statement of the case, if warranted. Pursuant to the September 2017 Board remand, the AOJ obtained updated VA treatment records that include the October 28, 2016 eye treatment visit note, and then readjudicated the issue in a December 2017 supplemental statement of the case. In view of the above, the Board finds that VA at least substantially complied with the April 2015, May 2016, and September 2017 Board remands. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Legal Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Visual impairment is rated based on impairment of visual acuity, visual field, and muscle function. 38 C.F.R. § 4.75(a). In the present case, the medical evidence of record, to include the VA treatment records and VA examination reports, indicate that the Veteran's service-connected blindness of the left eye does not manifest in visual field defect or muscle function defect. Therefore, the disability will be rated based on impairment of visual acuity. Visual acuity will be rated on the basis of corrected distance vision. 38 C.F.R. § 4.76(b). In any case where the examiner reports that there is a difference equal to two or more scheduled steps between near and distance corrected vision, with the near vision being worse, the examination report must include at least two recordings of near and distance corrected vision and an explanation of the reason for the difference. In such cases, the rating will be based on corrected distance vision adjusted to one step poorer than measured. 38 C.F.R. § 4.76(b)(3). When only one eye is service-connected, as is the case here, and subject to the provisions of 38 C.F.R. § 3.383(a), the visual acuity of the nonservice-connected eye will be considered to be 20/40 for the purposes of rating the service-connected visual impairment. 38 C.F.R. § 4.75(c). The maximum rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. The rating for visual impairment may be combined with ratings for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under Diagnostic Code 7800). 38 C.F.R. § 4.75(d). Under 38 C.F.R. § 3.383(a), compensation is payable for the certain combinations of service-connected and non-service-connected disabilities, as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran's own willful misconduct. With respect to the eyes, this applies when there is impairment of vision in one eye as a result of service-connected disability, and impairment of vision in the other eye as a result of nonservice-connected disability, and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. 38 C.F.R. § 3.383(a)(1). The Veteran's service-connected left eye blindness was previously rated under Diagnostic Code 6070, which provided a 30 percent rating where there was blindness in one eye, having only light perception, and visual acuity in the other eye of 20/40. See 38 C.F.R. § 4.84a, Diagnostic Code 6070 (2008). However, the criteria for rating disabilities of the eyes were amended effective December 10, 2008, and the amended, current rating criteria do not include Diagnostic Code 6070. The record in this case indicates that the Veteran has no more than light perception in the left eye, but does not have anatomical loss of the eye. 38 C.F.R. § 4.79, Diagnostic Code 6064 specifically pertains to disabilities where there is no more than light perception in one eye and not anatomical loss of an eye. Therefore, the Board will apply the criteria set forth under Diagnostic Code 6064 to rate the Veteran's blindness of the left eye. See 38 C.F.R. §§ 4.21, 4.27; see also Butts v. Brown, 5 Vet. App. 532 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Under Diagnostic Code 6064, a 30 percent rating is warranted where there is corrected visual acuity to 20/40 in the other eye. A 40 percent rating is warranted where there is corrected visual acuity to 20/50 in the other eye. A 50 percent rating is warranted where there is corrected visual acuity to 20/70 in the other eye. A 60 percent rating is warranted where there is corrected visual acuity to 20/100 in the other eye. A 70 percent rating is warranted where there is corrected visual acuity to 20/200 in the other eye. An 80 percent rating is warranted where there is corrected visual acuity to 15/200 in the other eye. A 90 percent rating is warranted where there is corrected visual acuity to 10/200 in the other eye. A 100 percent rating is warranted where there is corrected visual acuity to 5/200 in the other eye. Analysis The Veteran seeks an increased rating for blindness in the left eye. The Veteran's increased rating claim was received on October 20, 2011. Therefore, the relevant rating period is from October 10, 2010, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400(o)(2). The Veteran's left eye blindness is currently rated as 30 percent disabling. He has specifically argued that a rating of 50 percent is warranted based on light perception only in one eye and visual acuity of 20/70 in the other. See, e.g., "Appellant's Post-remand Brief", received in January 2018. Initially, the Board notes that the Veteran is not service connected for a right eye disability, and that his nonservice-connected right eye does not meet the criteria under 38 C.F.R. § 3.383(a)(1) for consideration in rating the service-connected left eye disability. Specifically, the medical treatment records do not show that the Veteran's right eye has had a corrected distance visual acuity of 20/200 or less or a peripheral field of vision of 20 degrees or less at any time during the relevant rating period. The Veteran had measured right-eye corrected distance visual acuities of 20/40 or better at the April 2012 VA examination, 20/50 at the May 2015 VA examination, and 20/70 at the January 2017 VA examination. Accordingly, the Veteran's nonservice-connected right eye visual defect is not for consideration in rating the service-connected left eye blindness beyond as set forth in 38 C.F.R. § 4.75(c), namely, the visual acuity for the nonservice-connected right eye will be considered to be 20/40 for the purposes of rating the service-connected left eye disability. The VA treatment records indicate that, throughout the relevant rating period, the Veteran has had no light perception in the left eye. The VA examination reports all describe the Veteran's left eye vision as limited to no more than light perception. There is no indication in the record that the Veteran has anatomical loss of the left eye. The Board again notes that, for rating purposes, the Veteran's nonservice-connected right eye is considered to have a visual acuity of 20/40. Under Diagnostic Code 6064, where there is no more than light perception in one eye and central visual acuity of 20/40 in the other eye, a 30 percent rating is warranted. Accordingly, throughout the relevant rating period a 30 percent rating has been warranted. The Board further notes that the maximum rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75(d). Because the Veteran does not have anatomical loss of the eye and is only service connected for visual impairment in the left eye, 30 percent is the maximum rating available for his disability and, thus, he has been in receipt of the maximum rating allowed for his service-connected left eye blindness throughout the relevant rating period. The Veteran, through his representative, has argued that extra-schedular consideration is warranted based on additional disability presenting as dry eyes with itching. See "Appellant's Brief" received in April 2015. However, the competent medical evidence of record, to include the VA examination reports, indicates that the Veteran's dry eyes are a disability that is separately diagnosable from the left eye blindness and are not caused or aggravated by the left eye blindness. Accordingly, the dry eyes and their associated itchiness are not considered to be a manifestation of the service-connected left eye blindness. They are therefore not for consideration in rating the left eye blindness, to include on an extra-schedular basis. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected left eye blindness, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). In summary, the Veteran's nonservice-connected right eye disability does not meet the requirements under 38 C.F.R. § 3.383(a)(1) for consideration in rating the service-connected left eye disability. Therefore, his right eye visual acuity is considered to be 20/40 for purposes of rating the service-connected left eye blindness. Under Diagnostic Code 6064, a 30 percent rating is warranted in cases such as this where there is no more than light perception in one eye and 20/40 visual acuity in the other and there is not anatomical loss of either eye. 30 percent is the maximum rating available for visual impairment in one eye where there is not anatomical loss of the eye. The Board therefore finds that the criteria for entitlement to a rating in excess of 30 percent for the Veteran's left eye blindness have not been met at any time during the rating period. Accordingly, there is no basis for staged rating of the Veteran's left eye blindness pursuant to Hart, 21 Vet. App. at 519. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 30 percent for blindness in the left eye is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs