Citation Nr: 1806838 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-13 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected primary open-angle glaucoma with bilateral cataracts. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a March 2014 rating decision, the RO granted an increased rating to 10 percent, effective August 31, 2009 (date of claim). As this rating decision was during the appeal period and does not represent an award of the maximum rating available for this disability, the Veteran's increased rating claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT The Veteran's primary open-angle glaucoma with bilateral cataracts requires medication but does not result in visual impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for service-connected primary open-angle glaucoma with bilateral cataracts are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6013 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met. The Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify is satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and pertinent post-service treatment records have been obtained. He was also offered the opportunity to testify before the Board, but he declined. In September 2017 written argument, the Veteran's representative requested that the Board remand the Veteran's claim to arrange for a new VA examination to determine the "current severity" of his eye condition, as his last VA examination had been in "May 2011, more than six years ago." The Board notes, however, that the Veteran's most recent VA eye examination was actually in February 2014. Further, VA's duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Rather, the duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. In the absence of an indication in the record or an allegation by the Veteran that his bilateral eye disability has worsened since his last examination in 2014, the Board declines to remand for a new VA examination. Neither the Veteran nor his representative has raised any other 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 duty to assist argument). Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's glaucoma with cataracts has been assigned a 10 percent disability rating under 38 C.F.R. § 4.79 , Diagnostic Code 6013 which provides that open-angle glaucoma is rated based on visual impairment or a minimum evaluation of 10 percent if continuous medication is required. Id. A higher rating requires impairment of visual acuity, impairment of visual field, and impairment of muscle function. 38 C.F.R. § 4.75(a). In that regard, evaluations for impairment of central visual acuity range from noncompensable to 100 percent. 38 C.F.R. § 4.79, Diagnostic Code 6061 to 6066. A 10 percent evaluation is warranted where vision is 20/50, 20/70 or 20/100 in one eye and 20/40 in the other eye or where vision is 20/50 in both eyes. The evaluations continue to increase for additional impairment of central visual acuity, which is to be measured based on the best distant vision obtainable after the best correction by glasses. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. Preoperative cataracts are also rated on the basis of visual impairment. 38 C.F.R. § 4.79, Diagnostic Code 6027. The Board notes that the Veteran has not been found to have postoperative cataracts. Therefore, 38 C.F.R. § 4.79, Diagnostic Code 6029 shall not been considered in determining whether a higher rating is warranted. Analysis After a careful review of the evidence and the legal standards above, the Board finds that a higher rating for primary bilateral open-angle glaucoma with bilateral cataracts has not been warranted for any period on appeal. In June 2009, the Veteran's underwent a private eye evaluation. See June 2009 Pacific Eye Institute records. The examiner documented 20/20 visual acuity and assessed the Veteran with posterior vitreous detachment of the right eye, suspected glaucoma, and bilateral nonsurgical cataracts. In September 2009, the Veteran was prescribed dorzolamide for glaucoma. See September 2009 Pacific Eye Institute records. In February 2010, the Veteran underwent a VA eye examination. The examiner documented 20/20 uncorrected/corrected visual acuity at distance bilaterally, 20/20 visual acuity at near for the left eye, 20/30 visual acuity at near for the right eye, and visual fields were full. The examiner assessed the Veteran with glaucoma, left eye worse than right; cataracts; and refractive error. In May 2011, the Veteran underwent another VA eye examination. His corrected visual acuity at distance was 20/20. Uncorrected visual acuity at distance was 20/40 in the right eye and 20/30 in the left eye. He was still being treated with dorzolamide for glaucoma. The examiner assessed the Veteran with mild dry eye syndrome, bilateral pre-surgical cataracts, and glaucoma. In January 2014, the Veteran underwent a VA ophthalmology consult. The examiner documented corrected visual acuity of 20/30 in the right eye and 20/20 in the left eye and normal visual fields. The examiner indicated that the Veteran had been on medication since being diagnosed with glaucoma and assessed the Veteran with glaucoma, pre-surgical cataracts, mild dry eyes, and post vitreous detachment (asymptomatic). Most recently, in February 2014, the Veteran underwent a VA eye examination. The examiner diagnosed the Veteran with primary open-angle glaucoma and cataracts. His corrected visual acuity at distance/near was documented as 20/40 or better, bilaterally. Uncorrected visual acuity at distance/near was 20/50 bilaterally. There was no diplopia. His visual fields were measured using the Goldmann's equivalent III/4e. The examiner found no contractions or visual field loss. As indicated above, the evidence does not demonstrate impairment of central visual acuity, significant impairment of visual fields, or impairment of muscle function, such that a higher rating is warranted. In pertinent part, throughout the appeal period, the Veteran is shown to have no more than 20/40 or better corrected vision, bilaterally, for which a 0 percent disability rating is warranted. There is also no evidence of significant visual field loss or loss of muscle function as diplopia was not shown. Accordingly, the Board finds that the Veteran's current 10 percent rating is commensurate with his use of continuous medication for glaucoma. The Board acknowledges that the Goldmann's chart included with the February 2014 examination report does not indicate that the Goldmann III stimulus size (4 millimeters (mm)) was used. See 38 C.F.R. § 4.77. In relevant part, the largest visual field labeled on the Goldmann's chart utilized the Goldmann II stimulus size (1 mm). Nevertheless, using the Goldmann II stimulus size, the average concentric contraction of the Veteran's visual fields produced a remaining visual field greater than 48 degrees in the right eye and greater than 51 degrees in the left eye. Such findings would not result in a higher disability rating. See 38 C.F.R. § 4.77, Diagnostic Code 6080. Therefore, as the Goldmann II stimulus size would be more difficult for the Veteran to see and would not produce a higher disability rating, it logically follows that the Goldmann III stimulus size (which would be easier for the Veteran to see) would also not result in a higher disability rating. Accordingly, the Board finds that the examiner's failure to include the Goldmann III stimulus size on the Goldmann chart is inconsequential to the Veteran's increased rating claim. The Board also acknowledges the Veteran's statement that the RO failed to consider his private treatment records in determining an appropriate rating. See April 2014 VA Form 9. However, as indicated above, the Board has carefully reviewed the entire record (including the Veteran's private treatment records from Pacific Eye Institute) and determined that a higher disability rating is not warranted. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An initial disability rating in excess of 10 percent for service-connected primary open-angle glaucoma with bilateral cataracts is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs