10-15 151
10-15 151
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served Jan 1972–Mar 1993 and appealed VA RO decision granting a 10% rating for right eye glaucomatous optic neuropathy and rating it with service‑connected ocular hypertension from July 20, 2011.
- Board previously remanded (Mar 2017) for additional treatment records; RO readjudicated and issued SSOC denying increase above 10% (Jun 2017); Board found substantial compliance with remand.
- VA exams (Dec 2011, Feb 2015) and treatment records show corrected distance vision no worse than 20/40 bilaterally and average remaining visual fields ~58.12° (R) and ~56.88° (L); continuous medication required; no incapacitating episodes, diplopia, scarring, or muscle dysfunction.
- RO initially invoked continuous medication as the basis for the 10% rating; Board applied DC 6013 (open‑angle glaucoma) by analogy (6099‑6013) because same medications are used for glaucoma.
- Board evaluated visual acuity, visual field, muscle function, incapacitating episodes, and potential analogous DCs (conjunctivitis, optic neuropathy, pinguecula) and found no evidence supporting a rating above 10% from July 20, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to rating >10% for ocular hypertension from Jul 20, 2011 | Veteran contends symptoms and impairment warrant >10% | VA/Board: evidence shows at‑worse acuity 20/40 bilaterally, visual field averages in 46–60° range, continuous meds but no incapacitating episodes or muscle dysfunction | Denied — 10% is correct from Jul 20, 2011; higher rating not met or approximated |
| Proper diagnostic code for rating | Veteran implicitly argued current rating undervalues symptoms | VA: continuous medication criterion fits DC 6013 (open‑angle glaucoma) by analogy; DC 6013 includes continuous medication and visual criteria | Board applied DC 6099‑6013 (not less favorable) |
| Effective date for 10% rating | Veteran sought increased rating; claim adjudicated from date of evidence of neuropathy | VA: no evidence of compensable level during year before Jul 20, 2011 | Effective date set as Jul 20, 2011 (date evidence of increase) |
| Extraschedular referral for exceptional disability picture | Veteran argued symptoms impair work (sensitivity, redness) | VA: symptoms and functional impact are contemplated by schedular criteria; no marked interference or frequent hospitalization; no combined exceptional impact shown | Denied — schedular ratings adequate; extraschedular referral not warranted |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (requires substantial compliance with Board remand directives)
- Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (a fully compliant VCAA notice before readjudication cures prior notice defects)
- Vazquez‑Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in increase claims is generic: show worsening and occupational effects)
- Kelly v. Brown, 7 Vet. App. 471 (1995) (Board may interpret graphical test results if it has the expertise and must address them)
- Savage v. Shinseki, 24 Vet. App. 249 (2011) (Board must consider and may interpret test graphs; cannot ignore them)
- Hart v. Mansfield, 21 Vet. App. 505 (2007) (temporal focus for increased rating claims: one year before the claim until final decision)
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑step inquiry for extraschedular ratings)
- Fanning v. Brown, 4 Vet. App. 225 (1993) (standards for extraschedular consideration)
- Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU issues may be part of rating when raised or reasonably raised by the record)
- Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) (extraschedular referral can be considered based on combined effect of multiple disabilities)
- Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (effective date rules for increased ratings when evidence shows earlier entitlement)
