Citation Nr: 1808963 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-14 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an effective date prior to April 8, 2011 for a 10 percent rating for service-connected bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome. REPRESENTATION Veteran represented by: Christopher L. Loiacono, Agent ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. He has not been competent to handle disbursement of funds since September 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In August 2017, the Board remanded the claim for additional development. The Veteran was scheduled for a hearing before a Veterans Law Judge in June 2017. He later indicated that he was not able to appear for the hearing and he has not requested that the hearing be rescheduled. As such, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (e) (2017). FINDINGS OF FACT 1. In a final decision, dated in September 2006, the RO denied a claim for a compensable rating for service-connected bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome. 2. On April 8, 2011, and no earlier, the Veteran's claim for a compensable rating for his service-connected bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome, was received. 3. As of April 8, 2010, the Veteran was shown to require continuous medication for his glaucoma. CONCLUSION OF LAW The criteria for an effective date of April 8, 2010, and no earlier, for a 10 percent rating for service-connected bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome, have been met. 38 U.S.C. §§ 5101 (a), 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he is entitled to an effective date prior to April 8, 2011 for a 10 percent rating for service-connected bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome. In August 2004, the RO granted service connection for diabetes mellitus. The RO also granted service connection, on a secondary basis, for diabetic retinopathy with mild cataracts in both eyes, evaluated as noncompensable. In May 2006, the Veteran filed a claim for a compensable rating. In September 2006, the RO denied the claim. In each case, there was no appeal, and the RO's decisions became final. See 38 U.S.C. § 7105(c). As for the history of the disability in issue, a VA examination report, dated in August 2006, showed that the Veteran's diagnoses were diabetic retinopathy and glaucoma. Uncorrected near visual acuity was 20/250, bilaterally, and uncorrected distant visual acuity was 20/25, bilaterally. Visual fields were normal bilaterally. His cataracts were noted not to be causing visual problems. A VA examination report, dated in May 2011, shows that the Veteran's uncorrected near visual acuity was 20/20, bilaterally; there was another findings of 20/25 visual acuity, bilaterally. The visual fields were normal. With regard to employability, the examiner stated that his vision is essentially normal. The diagnoses were diabetes with nonproliferative diabetic retinopathy, clinically significant diabetic macular edema, right eye, and cataract, mild, both eyes. See 38 C.F.R. § 4.1. On April, 8, 2011, the Veteran filed a claim for total disability rating due to individual unemployability (TDIU), which the RO interpreted as a claim for a compensable rating for his service-connected eye disability. See Hurd v. West, 13 Vet. App. 449 (2000) (a TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim). In September 2011, the RO granted the claim, to the extent that it assigned a 10 percent rating, with an effective date of April 8, 2011. The Veteran has appealed the issue of entitlement to an effective date prior to April 8, 2011 for the 10 percent rating. The Board notes that in August 2017, it denied a claim of entitlement to a rating in excess of 10 percent for a bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome. The Board's decision is final. See 38 U.S.C. § 7104 (b). Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o) (2017); Harper v. Brown, 10 Vet. App. 125 (1997). VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). Once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157 (b)(1). The Board finds that a formal or informal claim is not shown to have been received at any time following the RO's September 2006 decision and prior to April 8, 2011. The Veteran has not specifically asserted otherwise. Moreover, there is no evidence to show, that he filed a formal or informal increased rating claim prior during this time. 38 C.F.R. §§ 3.155, 3.157. In this regard, although medical evidence was added to the claims file following the RO's September 2006 decision, and prior to April 8, 2011, none of it indicates that the Veteran sought a compensable rating for his service-connected eye disability or fulfills the criteria at 38 C.F.R. § 3.157. In the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). A Veteran's attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet App. 327, 330 (1993). Accordingly, a formal or informal increased rating claim is not shown to have been received following the RO's September 2006 decision and prior to April 8, 2011. The grant of the 10 percent rating arose from the Veteran's claim for a compensable rating that was received on April 8, 2011. Under these circumstances, the next issue is therefore whether the evidence dated up to one year prior to April 8, 2011, made it factually ascertainable that the criteria for an evaluation in excess of 10 percent had been met. See 38 C.F.R. § 3.400 (o)(2). Under the applicable law, a claimant may receive an effective date for an increased evaluation up to one year prior to the date of claim, if it is factually ascertainable that an increase in disability had occurred within the year preceding the claim. 38 U.S.C. § 5110 (a) and (b)(2); 38 C.F.R. § 3.400 (o)(1) and (2). The Veteran could therefore be granted an effective date as early as April 8, 2010, if it was factually ascertainable that an increase in disability had occurred. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 RO has evaluated the Veteran's service-connected eye disabilities under DC's 6006-6079. See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Here, DC 6006 represents retinopathy or maculopathy, and DC 6079 (which is no longer in effect) represents an impairment in visual acuity. Under 38 C.F.R. § 4.79, Diagnostic Code 6027 (2017), preoperative cataracts and postoperative cataracts with a replacement lens (pseudophakia) are evaluated based on visual impairment; postoperative cataracts without a replacement lens are evaluated based on aphakia. Impairment of vision under title 38 C.F.R. may include an examination of the visual acuity (§ 4.75), field of vision (§ 4.76) and muscle function (§ 4.77). The regulations direct that evaluation of visual impairment is to be rated based on the consideration of three factors: (1) impairment of visual acuity (excluding developmental errors of refraction), (2) visual field, and (3) muscle function. 38 C.F.R. § 4.75 (a) (2017). However, examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with a visual field defect or impaired muscle function. 38 C.F.R. § 4.75 (b). Evaluation of central visual acuity is based on corrected distance vision with central fixation even if central scotoma is present. 38 C.F.R. § 4.76 (b). Diagnostic Codes 6061-6066 contain the criteria to evaluate impairment of central visual acuity. 38 C.F.R. § 4.79 (2017). The ratings increase in 10 percent increments according to the levels of vision impairment with the greatest award of 100 percent assignable for visual acuity of 5/200 in each eye. Id. Under 38 C.F.R. § 4.79, Diagnostic Code 6066, a noncompensable rating is warranted when corrected visual acuity is 20/40 in both eyes. A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or corrected visual acuity is 20/50 in both eyes. 38 C.F.R. § 4.79, DC 6066 (2017). The medical evidence dated between April 2010 and April 2011 includes VA and non-VA reports which show treatment for a number of symptoms. Primarily they show treatment for a cardiovascular disorder. This evidence includes notations that the Veteran was taking Azopt and Travatan for his eye symptoms. See SMDC reports. The Board finds that a 10 percent rating is warranted for the Veteran's service-connected eye disability as of April 8, 2010. The Board must consider the possibility of a higher rating under all potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this case, service connection is in effect for eye disabilities that include glaucoma. Under DC 6013, noncongestive primary simple glaucoma is to be rated on impairment of visual acuity or field loss. The minimum rating is 10 percent if continuous medication is required. Here, the Veteran is shown to have been using Azopt. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Accordingly, an effective date of April 8, 2010 for the Veteran's 10 percent rating for his service-connected bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome, is granted. An effective date prior to April 8, 2010 for the 10 percent rating for the Veteran's eye disability is not warranted, as this is the earliest effective date allowed under the law based on the date of receipt of his claim, i.e., April 8, 2011. See 38 C.F.R. § 3.400(o)(2). The Board has considered the doctrine of reasonable doubt, however, to the extent that the claim has been denied, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (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). Based on the foregoing, the Board finds that the appellant has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An effective date of April 8, 2010, and no earlier, for a 10 percent rating for service-connected bilateral eye diabetic retinopathy with cataracts, open angle glaucoma, and dry eye syndrome, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs