Citation Nr: 0626466 Decision Date: 08/24/06 Archive Date: 09/01/06 DOCKET NO. 02-14 986A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. For the period from October 15, 1992 to March 7, 2006, entitlement to an initial evaluation in excess of 20 percent for bilateral open angle glaucoma with vision loss. 2. For the period beginning on March 8, 2006, entitlement to an initial evaluation in excess of 30 percent for bilateral open angle glaucoma with vision loss. REPRESENTATION Veteran represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD S. B. Mays, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1970. The Board, in a February 2000 decision, granted service connection for bilateral glaucoma with loss of vision field. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 2001 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO), which effectuated the Board's grant of service connection, and assigned a 20 percent evaluation, effective October 15, 1992. The Board notes that the veteran's May 2002 Notice of Disagreement also indicates that the veteran disagreed with the effective date of the grant of service connection for glaucoma, with assignment of a 20 percent evaluation. The veteran objects to a June 1, 2001 effective date, claiming that the grant should be from the date of his claim. However, the effective date of the grant of service connection for glaucoma, with assignment of a 20 percent evaluation is the date of his claim, October 15, 1992. The RO sent a letter to the veteran's representative seeking clarification. No response was received to this letter and that matter is not currently before the Board. In December 2003, the Board remanded the case for further development. The case is now before the Board for appellate review. FINDINGS OF FACT 1. For the period from October 15, 1992 to March 7, 2006, there is no evidence of concentric contraction of visual field to 45 degrees, but not to 30 degrees. On May 2000 "QTC" examination, best corrected distance visual acuity in the right eye was 20/40, and 20/30 in the left eye. 2. For the period since March 8, 2006, there is no evidence of concentric contraction of visual field to 30 degrees, but not to 15 degrees; and best corrected distance visual acuity in the right eye is 20/40, and 20/50 in the left eye. 3. The veteran has not submitted evidence tending to show that his service-connected bilateral glaucoma requires frequent hospitalization, is unusual, or causes marked interference with employment. CONCLUSIONS OF LAW 1. For the period from October 15, 1992 to March 7, 2006, the criteria for an initial evaluation in excess of 20 percent for bilateral open angle glaucoma with vision loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.76, 4.76a, 4.84a, Diagnostic Code 6080 (2005). 2. For the period beginning on March 8, 2006, the criteria for an initial evaluation excess of 30 percent for bilateral open angle glaucoma with vision loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.76, 4.76a, 4.84a, Diagnostic Code 6080 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2005), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In the present case, the veteran was provided with the notice required by the VCAA in a December 2005 letter. That letter informed the veteran to submit any pertinent evidence he has in his possession, informed him of the evidence required to substantiate his claim, the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf. Therefore, the Board finds that he was provided with the notice required by the VCAA. The veteran has identified eye treatment from Dr. Ozment from November 1989 to the present (2005). The record only contains a June 1996 medical statement from Dr. Ozment. In December 2005, the RO provided the veteran with an authorization for release of information, however he did not complete the release and return it to the RO. All available evidence pertaining to the veteran's claim has been obtained. The claims folder also contains service medical records, QTC" eye examination reports, evidence from the VA Medical Center in Decatur, Georgia, as well as private medical evidence from Eye Consultants of Atlanta, Dr. Bash, and Dr. Ozment (June 1996 statement). It appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and that neither he or his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the veteran in the development of the facts pertinent to his claim. The record also reflects that the originating agency readjudicated the veteran's claim being decided herein following the provision of the required notice and the completion of all indicated development of the record. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. In March 2006, the RO advised the veteran as to how disability ratings and effective dates are assigned, as required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). For the above reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide the issues discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio, 16 Vet. App. 183; Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2005) (harmless error). Increased Rating Claims The Board has reviewed all the evidence in the veteran's claims folder, to include, but not limited to, VA and private medical evidence. For the purpose of reviewing the medical history of the veteran's service-connected disorder, see 38 C.F.R. §§ 4.1, 4.2, the Board also reviewed medical evidence developed in connection with prior claims. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. The Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2005); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38C.F.R. § 4.3 (2005). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2005). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (2005), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). In this case, however, because the appeal ensues from the veteran's disagreement with the evaluations assigned in connection with the original grant of service connection, the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). Legal Criteria Simple, primary noncongestive glaucoma is rated on impairment of visual acuity or field loss, with a minimum rating of 10 percent. 38 C.F.R. § 4.84a, Diagnostic Code 6013. The veteran's service connected bilateral glaucoma has been rated under Diagnostic Code 6080, which contemplates impairment of field of vision. See 38 C.F.R. § 4.84a (2005). The extent of contraction of visual field 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 of VA's Rating Schedule for determining average concentric contraction of visual fields. 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 eight represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2005). Under Diagnostic Code 6080, concentric contraction of visual field to 60 degrees, but not to 45 degrees, warrants a 20 percent evaluation for bilateral loss. Concentric contraction of visual field to 45 degrees, but not to 30 degrees, warrants a 30 percent evaluation for bilateral loss. Concentric contraction of visual field to 30 degrees, but not to 15 degrees, warrants a 50 percent evaluation for bilateral loss. Concentric contraction of visual field to 15 degrees, but not to 5 degrees, warrants a 70 percent evaluation for bilateral loss. 38 C.F.R. § 4.76a (2005). a. For the period from October 15, 1992 to March 7, 2006 The veteran's bilateral glaucoma is rated under Diagnostic Code 6080, which contemplates impairment of field vision. 38 C.F.R. § 4.84a. On review of the VA and private medical evidence of record, the Board finds that an evaluation in excess of 20 percent is not warranted between October 15, 1992 and March 7, 2006. On May 2000 "QTC" examination, there was a mild bilateral generalized constriction of the fields. Average concentric contraction was to 48 degrees in the right eye, and to 47 degrees in the left eye. As the evidence fails to show concentric contraction of visual field to 45 degrees, but not to 30 degrees, an evaluation in excess of 20 percent during the applicable time period is not warranted. 38 C.F.R. § 4.86a, Diagnostic Code 6080. There were no other findings on Goldmann visual field testing that would warrant a higher rating during this period. The veteran's glaucoma can also be evaluated based on the veteran's central visual acuity. However, best corrected distance visual acuity during the May 2000 examination was 20/40 in the right eye, and 20/30 in the left eye, therefore, during the applicable time period, a higher evaluation is not warranted based on the veteran's central visual acuity. See 38 C.F.R. § 4.84a; Diagnostic Codes 6078-6079. b. For the period beginning on March 8, 2006 The veteran's current 30 percent evaluation for service- connected glaucoma with vision loss is based on visual field test results taken during his recent "QTC" examination in March 2006. During such examination, visual field test showed a marked constriction of the visual field in the right eye with a nasal step, and a generalized constriction of the visual field in the left eye. Average concentric central contraction was to 44 degrees in the right eye, and to 31 degrees in the left eye. Such field vision impairment warrants the current 30 percent evaluation, but no higher. VA and private medical evidence of record fails to show evidence of concentric contraction of visual field to 30 degrees, but not to 15 degrees. Accordingly, an evaluation in excess of 30 percent based on field vision impairment since March 8, 2006 is not warranted. 38 C.F.R. § 4.84a, Diagnostic Code 6080 (2005). A higher evaluation based on visual acuity is also not warranted, as acuity during the most recent "QTC" examination was correctable to 20/40 in the right eye, and to 20/50 in the left eye. 38 C.F.R. § 4.84a; Diagnostic Codes 6078-6079. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran. In this case, the Board finds no provision upon which to assign a higher evaluation. As the preponderance of the evidence is against the increased rating claim, the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002). Finally, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2005). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular scheduler standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. §3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identity all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321 (b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the evidence of record does not indicate the veteran is frequently hospitalized for his service-connected glaucoma nor does the evidence show that such disability causes marked interference with employment. Having reviewed the record with these mandates in mind, the Board finds no basis for further action. See VAOPGCPREC 6-96. ORDER For the period from October 15, 1992 to March 7, 2006, entitlement to an initial evaluation in excess of 20 percent for bilateral open angle glaucoma with vision loss is denied. For the period beginning on March 8, 2006, entitlement to an initial evaluation in excess of 30 percent for bilateral open angle glaucoma with vision loss is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs