Citation Nr: 1756979 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 08-07 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial separate, compensable rating for a left eye condition, post-cataract extraction with lens replacement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for a left eye condition and assigned an initial noncompensable rating, effective December 6, 2004. The Board previously remanded this matter for development in September 2012 and November 2015. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran's left eye condition, post-cataract extraction with lens replacement has manifested by corrected left eye visual acuity no worse than 20/40. 2. Constricted visual field is not related to the Veteran's service-connected post-cataract extraction with lens replacement. CONCLUSION OF LAW The criteria for an initial, separate compensable rating for a left eye condition, post-cataract extraction with lens replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.75-4.84a, Diagnostic Codes 6066 and 6079 (2008 and 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Higher Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C.A. § 1155 (West 2014). Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1 (2017). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Where there is a question as to which of the two disability evaluations is 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 (2017). After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Analysis The Veteran's service-connected left eye condition, secondary to diabetes mellitus, was granted in an August 2005 rating decision. An initial noncompensable rating was assigned, effective December 6, 2004, under Diagnostic Code 6079. In a December 2011 rating decision, the RO recharacterized the disability as part and parcel with the Veteran's service-connected diabetes mellitus, pursuant to DC 7913, Note 1. Diagnostic Code 7913, Note (1) instructs the rater to evaluate compensable complications of diabetes separately, unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. See 38 C.F.R. § 4.119 (2017). The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. §4.84a. During the course of the appeal, the schedule for rating disabilities of the eye was amended effective December 10, 2008. Such amendments are only applicable to claims filed on or after December 10, 2008. See 73 Fed. Reg. 66543 (November 10, 2008); See 38 C.F.R. § 4.75 -4.84(a) (2008). The Veteran's claim for benefits was filed prior to October 23, 2008 and he has not requested consideration under the new regulations. However, in the September 2012 remand, the Board indicated that both sets of rating criteria should be used in this case. Under the former rating criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079 (2008). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. 38 C.F.R. § 4.75 (2008). The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a. Under the former rating criteria, vision in both eyes correctable to 20/40 warrants a non-compensable evaluation. 38 C.F.R. § 4.84a, DC 6079. A 10 percent rating is warranted when vision in one eye is correctable to 20/40 and vision in the other eye is correctable to 20/50, 20/70, or 20/100. 38 C.F.R. § 4.84a, DC 6079 (2008). Under the revised criteria, impairment of central visual acuity is still evaluated from 0 percent to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.79, DC 6061- 6066 (2017). A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. 38 C.F.R. § 4.79, DC 6066 (2017). The Veteran is not service-connected for his right eye. Subject to the provisions of 38 C.F.R. § 3.383(a), if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c) (2017). Since only the Veteran's left eye is service connected, Section 4.75(c) applies, and his right eye will be assumed to have 20/40 visual impairment. According to the Veteran's claims folder, he had cataract surgery in August 2006. A January 2007 ophthalmology note indicated that the Veteran reported double vision in his left eye post-cataract surgery. His left eye vision test reported at 20/40, but was not tested at distance and at near, as per 38 C.F.R. § 4.76(a). Corrected visual acuity for the right eye was reported as 20/30. No visual field restrictions, aphakia, or other eye diseases were noted. In August 2007, the Veteran failed to report to a scheduled VA examination without good cause. There were no other eye-related medical reports submitted between 2005 to December 10, 2008. A February 2010 diabetic retinopathy consult indicated that the Veteran did not have diabetic retinopathy. His vision was reported as 20/20, although the results did not differentiate the distance versus near acuity measurements. The Veteran reported for a VA evaluation in October 2011. The examiner noted that the Veteran's left eye was within normal limits. The Veteran underwent a VA fee-based ophthalmological examination in September 2011. At the examination, the Veteran's uncorrected visual acuity in the left eye was 20/80 at distance and 20/400 near. His corrected left eye was 20/25 at distance and 20/20 near. Right eye corrected distance and near vision was 20/25. The Veteran reported seeing floaters, but the examiner opined that they were a benign occurrence that did not lead to visual problems. The examiner diagnosed pseudophakia in the left eye, post-cataract surgery. The examiner also noted constricted visual fields when he administered a Goldmann visual field test. However, the examination tested only four of the eight meridians, which the Board then deemed inadequate and remanded for further development in September 2012. In a November 2011 addendum, the examiner indicated that the pseudophakia and constricted visual fields were not related to the service-connected diabetes, which was the basis of the grant of service connection for the left eye disorder. The examiner did not opine on whether they were manifestations resulting from the left eye disorder itself following cataract extraction and lens replacement. The Board remanded the appeal as it was unclear whether the decreased field of vision is a manifestation resulting from the left eye disorder status post cataract extraction and lens replacement. Pursuant to the Board remand, the Veteran underwent an examination in August 2013 VA. At the examination, the Veteran was diagnosed with left eye Weiss ring floater, bilateral loss of superior visual field and bilateral ptosis. The Veteran had uncorrected left eye visual acuity of 20/100 at distance and 20/200 at near, with corrected vision acuity of 20/40 or better at distance and 20/40 or better at near in both eyes. The examiner opined the floaters were annoying but did not pose any health risks. The examiner stated that pseudophakia was a condition where a person's natural lens was replaced with an artificial lens implant during cataract surgery. The examiner also opined that the visual field loss was most likely due to his bilateral ptosis. In a November 2015 Remand, the Board sought further clarification as to the nature and severity of the Veteran's left eye condition and interpretation of the September 2011 visual field, if possible. In an addendum dated December 2015, the examiner stated that the Veteran's constricted visual field is less likely than not related to his currently service-connected left eye condition. The rationale was that the medical evidence did not document or report any eye condition that can cause constriction of visual fields. The examiner noted that the visual field test taken in August 2013 may have resulted in an increase of defects, as the Veteran was very fatigued at the time the test was administered. In June 2016 the examiner reviewed the available medical records and noted that the visual fields test results from September 2011 were: down/temporal, to approximately 52 degrees; down/nasal, to approximately 31 degrees; up/temporal, to approximately 25 degrees; and up/nasal, to approximately 45 degrees. The examiner opined that the left eye visual field constriction was not a manifestation of pseudophakia, but more likely than not to be caused by ptosis reported at the August 2013 VA examination. The examiner opined that the ptosis developed after the 2011 eye examination. In November 2016 the examiner further clarified that the lens replacement is pseudophakia. The examiner clarified that the lens replacement did not cause the visual field constrictions. A January 2017 optometry consult report shows the Veteran's left eye visual acuity was 20/20 at distance and 20/30 at near. Pursuant to the Board remand in November 2015, the Veteran was scheduled for a VA examination in March 2017. However, the Veteran did not report as scheduled. When the RO followed up as to why the Veteran did not report to the scheduled examination, he stated that his vision was "fine," and that his vision had improved. See April 2017 Report of General Information. The record also shows that the Veteran canceled an examination scheduled for August 2017. Given the evidence of record, the Veteran's left eye condition does not approximate the criteria for a 10 percent rating, which is the next higher disability evaluation. In order to warrant a minimum compensable rating based on impaired visual acuity (notably, under both the old and revised regulations), one eye must have corrected distance vision of no better than 20/50. Per Section 4.75(c), the right eye is assumed at 20/40 impairment. At no time has the Veteran's corrected visual acuity been worse than 20/40 in either eye. Thus, the preponderance of the evidence is against an initial compensable rating under DC 6079 or 6066. Further, based on the cumulative competent and persuasive medical opinions, a compensable evaluation based on impaired visual fields is not appropriate. See 38 C.F.R. § 4.79, DC 6080. The Board finds the medical opinions probative in that the Veteran's visual field constriction is not in any way related to the service-connected left eye condition. In sum, the evidence does not support a compensable rating for a left eye condition. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are no other issues expressly or reasonably raised by the record. ORDER An initial compensable rating for a left eye condition, post-cataract extraction with lens replacement, is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs