Citation Nr: 0005352 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-28 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 70 percent for glaucoma, for the period from April 14, 1997 to September 21, 1998. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from July 1949 to December 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 1997, the RO denied an evaluation in excess of 40 percent for glaucoma. The veteran appealed this decision. In February 1998, the veteran withdrew his request for a personal hearing. Following the veteran's appeal, the RO, in March 1998, increased the evaluation for glaucoma from 40 percent to 70 percent, effective April 14, 1997, the date of receipt of the veteran's claim for increase. In May 1999, the RO again increased the evaluation for glaucoma, to 100 percent. The effective date of increase was September 22, 1998. As the increased rating to 100 percent was not effective from the date of receipt of the claim (April 14, 1997), the issue that remains in appellate status is entitlement to an evaluation in excess of 70 percent for glaucoma, for the period from April 14, 1997 to September 21, 1998. The veteran has been in receipt of a total (100 percent) compensation rating based on individual unemployability since September 16, 1971. FINDINGS OF FACT 1. From April 14, 1997 to March 30, 1998, glaucoma was manifested by average concentric contraction of the visual field in the right eye to 11 degrees, with light perception only in the left eye. 2. From March 31, 1998, glaucoma was manifested by average concentric contraction of the visual field in the right eye to 4 degrees, with light perception only in the left eye. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 70 percent for glaucoma, for the period from April 14, 1997 to March 30, 1998 had not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.400, 4.1-4.14, 4.75, 4.76, 4.76a, 4.80, 4.83a, 4.84, Diagnostic Codes 6013, 6068, 6080 (1999). 2. The schedular criteria for a 100 percent evaluation for glaucoma were met, effective March 31, 1998. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 3.400, 4.1-4.14, 4.75, 4.76, 4.76a, 4.80, 4.83a, 4.84, Diagnostic Codes 6013, 6067, 6080 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a veteran is seeking an increased rating, an assertion of an increase in severity is sufficient to render the increased rating claim well-grounded. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). With a well-grounded claim arises a statutory duty to assist the veteran with the development of evidence in connection with his claim. 38 U.S.C.A. § 5107(a). The Board finds that the record as it stands is adequate to allow for equitable review of the veteran's increased rating claim and that no further action is necessary to meet the duty to assist the veteran. Disability evaluations are determined by the application of the Schedule For Rating Disabilities,(Rating Schedule) which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Service connection for glaucoma was granted in April 1967, and a 10 percent evaluation was assigned, effective December 1966. In August 1968, based on a VA examination report that noted marked glaucomatous cupping discs with nasal displacement of the central vessels, the RO increased the evaluation for glaucoma to 100 percent, effective March 1968. In January 1969, the evaluation was reduced to 10 percent, effective April 1969, based on a VA examination report that showed that the veteran had responded satisfactorily to treatment. The evaluation remained unchanged until the RO, in April 1985, increased it to 30 percent, effective May 1984. In August 1987, the RO increased the evaluation again, to 40 percent, effective July 1987. This decision was based on VA treatment records, and on a VA examination report that revealed that the veteran had no light perception in the left eye and his best corrected visual acuity in the right eye was 20/50. On April 14, 1997, the veteran's claim of entitlement to an evaluation in excess of 40 percent for glaucoma was received by VA. In a rating decision dated in June 1997, the RO denied the veteran's claim. The veteran appealed that decision and in a rating decision in March 1998, the RO increased the evaluation to 70 percent, effective April 14, 1997. In addition, the RO changed the applicable Diagnostic Codes for the veteran's disability from 6013-6069, which relate to glaucoma with impairment of central visual acuity, to 6080, which relates to impairment of field of vision. The rating decision was based on VA examinations conducted in May and October 1997, and on treatment records from November 1995 to August 1997. The treatment records noted that the veteran had no light perception in the left eye, with visual acuity in the right eye ranging from 20/30 in May 1996 to 20/70 in February 1997. The May 1997 VA examination report noted that the veteran's best corrected visual acuity was 20/40 in the right eye. The examiner's impression was that the veteran had advanced glaucoma in the right eye, with no light perception in the left eye. The October 1997 VA examination report indicated that in the right eye, uncorrected near visual acuity was 20/50, uncorrected far visual acuity was 20/70, corrected near visual acuity was 20/30, and corrected far visual acuity was 20/50. The Rating Schedule uses the Goldmann Perimeter Chart in rating loss of visual fields. The May 1997 examination did not use the Goldmann Perimeter Chart, but the October 1997 examination did. The method for calculating visual field loss is demonstrated at 38 C.F.R. § 4.76(a). The veteran's visual field loss is as follows: Right Eye OD Direction Normal Remainin g Loss Temporally 0 85 22 63 Down Temporally 315 85 14 71 Down 270 65 12 53 Down Nasally 225 50 13 37 Nasally 180 60 10 50 Up Nasally 135 55 7 48 Up 90 45 0 45 Up Temporally 45 55 10 45 Loss = 412 Available = 500 Minus Loss 412 Remaining Field 88 Remaining Field 88 Dividing By 8 Gives Average Contraction 11 Thus, according to the Goldman Perimeter Chart, the October 1997 VA examination report revealed that the veteran's visual field in the right eye was contracted concentrically to an average of 11 degrees. The examiner's diagnoses were the following: end stage glaucoma in the left eye, with opaque media and no light perception, with a history of peripheral iridectomy; primary open angle glaucoma in the right eye pending surgery to decrease pressure (not under control with medication), with a history of peripheral iridectomy; pan retinal photocoagulation in the right eye secondary to diabetic retinopathy; posterior chamber lens implant, right eye. Under 38 C.F.R. § 4.84a, a 50 percent evaluation is warranted under Diagnostic Code 6069 when the veteran is blind in one eye, having only light perception, and central visual acuity in the other eye is 20/70. A 60 percent evaluation is warranted when the veteran is blind in one eye, with only light perception, and central visual acuity in the other eye is 20/100. Under Diagnostic Code 6068, when the veteran is blind in one eye, having only light perception, a 70 percent evaluation is warranted when central visual acuity in the other eye is 20/200, an 80 percent evaluation is warranted when central visual acuity in the other eye is 15/200, and a 90 percent evaluation is warranted when central visual acuity in the other eye is 10/200. Under Diagnostic Code 6067 a 100 percent evaluation is warranted when the veteran is blind in one eye, having only light perception, and central visual acuity in the other eye is 5/200. Under 38 C.F.R. § 4.75, corrected vision is to be used as the basis for rating. While it is unclear from the treatment records whether the figures for right eye visual acuity of 20/70 were for corrected or uncorrected vision, none of the medical evidence for this period shows corrected visual acuity in the right eye to be worse than 20/70. Thus, under Diagnostic Code 6069, a 50 percent evaluation would be warranted for the veteran's glaucoma, and Diagnostic Codes 6067 and 6068 would not apply. The Board notes, however, that under Diagnostic Code 6080, where there is unilateral concentric contraction of the visual field to between 5 and 15 degrees, a 20 percent evaluation is warranted, or the disability may be rated as visual acuity of 20/200, if the latter method provides a higher rating. The October 1997 VA examination report indicated that average concentric contraction of the visual field in the right eye was to 11 degrees, thus the veteran's disability could be rated equivalent to visual acuity of 20/200. As noted above, under Diagnostic Code 6068, a 70 percent evaluation is warranted when the veteran is blind in one eye, having only light perception, and when central visual acuity in the other eye is 20/200. Therefore, in view of the fact that average concentric contraction of the visual field in the right eye was to 11 degrees, while the veteran had light perception only in the left eye, a 70 percent evaluation was warranted under DC 6068-6080 from April 14, 1997. VA treatment records from September 28, 1998 reported that, in the right eye, the veteran had light perception only, while the left eye had no light perception. Based on this evidence, the RO in May 1999, increased the evaluation for glaucoma from 70 percent to 100 percent, effective September 28, 1998. In addition, the RO changed the applicable Diagnostic Code applicable to the veteran's disability from 6080, which relates to impairment of field of vision, to 6062, which relates to blindness in both eyes having only light perception. The Board notes, however, that evidence prior to September 28, 1998 supports a 100 percent evaluation. Correspondence dated in March 31, 1998, from Robert J. Derick, M.D., reported that the veteran's visual field was constricted to within 4 degrees of fixation. Under Diagnostic Code 6080, where there is unilateral concentric contraction of the visual field to 5 degrees or less, a 30 percent evaluation is warranted, or the disability is to be rated as equivalent to visual acuity of 5/200. As noted above, under Diagnostic Code 6067 a 100 percent evaluation is warranted when the veteran is blind in one eye, having only light perception, and central visual acuity in the other eye is 5/200. While Dr. Derick did not provide copies of diagrams of the veteran's visual field loss drawn on a Goldmann Perimeter Chart to support his opinion, statements made by medical professionals are presumed to be in compliance with the standards and criteria of their profession. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). It is the Board's judgment that the evidence is at least in equipoise as to whether the central visual acuity in the veteran's right eye is 5/200. Accordingly, the evidence supports a 100 percent evaluation for glaucoma, under Diagnostic Codes 6080-6067, from March 31, 1998. Following a careful review of the evidence, however, the Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent for glaucoma prior to March 31, 1998. As discussed above, the November 1997 VA examination report demonstrated average concentric contraction of the visual field in the right eye to 11 degrees, with light perception only in the left eye. This evidence warrants a 70 percent evaluation. The medical evidence prior to November 1997 consists of VA treatment records and the May 1997 VA examination, which as discussed above, do not support an evaluation in excess of 70 percent. After the November 1997 VA examination, the record is devoid of any treatment records or other evidence until March 31, 1998. Therefore, there is no evidence prior to March 31, 1998 to support an evaluation in excess of 70 percent . Accordingly, for the period prior to March 31, 1998, an evaluation in excess of 70 percent for glaucoma is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against an effective date prior to March 31, 1998 for an evaluation in excess of 70 percent for glaucoma, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the reasons aforementioned, a 100 percent evaluation for glaucoma effective from March 31, 1998 is warranted. ORDER A 100 percent evaluation for glaucoma is granted, effective March 31, 1998. An evaluation in excess of 70 percent for glaucoma, for the period from April 14, 1997 to March 30, 1998, is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals