Citation Nr: 1753723 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 09-05 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a separate compensable rating for diabetic retinopathy. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD R.Casadei, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1970. The issue on appeal was previously remanded in February 2017. FINDING OF FACT The Veteran's diabetic retinopathy has not caused incapacitating episodes, central visual acuity worse than 20/40 corrected distance vision in either eye, or impairment of visual fields or other similar symptoms. CONCLUSION OF LAW The criteria for a separate compensable rating for diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.76, 4.79 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran is service-connected for diabetes mellitus with diabetic retinopathy, which is rated as 20 percent disabling pursuant to Diagnostic Code (DC) 7913. Under that code, compensable complications of diabetes are to be related separately, while noncompensable complications are considered part of the diabetic process. In this case, diabetic retinopathy has been found to be noncompensable and a separate rating is not assigned. DC 6006 is applicable to retinopathy or maculopathy and provides for ratings under the general rating formula for DCs 6000 through 6009. The criteria calls for evaluation on the basis of either visual impairment due to the particular condition or incapacitating episodes, whichever results in a higher evaluation. With respect to loss of visual impairment, visual acuity is determined based on corrected distant vision with a 10 percent rating assigned for vision in one eye of 20/40 and in the other eye of 20/50; or, vision in one eye of 20/70 and 20/40 in the other eye; or, vision of 20/100 in one eye and 20/40 in the other eye. A 20 percent rating is assigned for vision of 20/70 in one eye and 20/50 in the other eye; or, 20/100 in one eye and 20/50 in the other eye; or, 20/200 in one eye and 20/40 in the other eye; or, vision of 15/200 in one eye and 20/40 in the other eye. With respect to incapacitating episodes, incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during a 12-month period warrant a 10 percent rating. The Veteran underwent VA examinations in May 2016 and August 2017. During both VA examinations, visual acuity corrected distance was 20/40 or better bilaterally. The May 2016 VA examiner indicated that visual fields were within normal limits. The August 2017 examiner indicated that the Veteran had contraction of a visual field, but no loss of visual field. VA treatment records have been reviewed but do not provide visual acuity tests based on corrected distant vision. As noted above, with respect to impairment of visual acuity, a compensable rating is warranted where corrected distant visual acuity is 20/40 and in the other eye of 20/50; or, vision in one eye of 20/70 and 20/40 in the other eye; or, vision of 20/100 in one eye and 20/40 in the other eye. However, given that VA examinations document corrected distant vision of 20/40 or greater in both eyes, a higher rating is not warranted on this basis. Further, there is no evidence of loss of visual field. In addition, incapacitating episodes related to the Veteran's diabetic retinopathy were not shown at the time of the examinations and have not been alleged to have occurred. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's diabetic retinopathy is not shown to involve any other factor that would warrant higher evaluation of the disability under any other provisions of the rating schedule. The Board also considered the Veteran's lay statements. He is competent to report his own observations with regard to the symptoms of his diabetic retinopathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, his general lay assertions of decreased vision are outweighed by the specific optometric findings of the trained health care professionals who conducted vision testing throughout the appeal period. Accordingly, a separate, compensable rating for diabetic retinopathy is not warranted and the appeal is denied. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER A separate compensable rating for diabetic retinopathy is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs