Citation Nr: 18153895 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-04 965 DATE: November 28, 2018 ORDER A rating in excess of 30 percent for aphakia, surgical, left eye, is denied. FINDING OF FACT 1. Throughout the entire period of appeal, the Veteran’s aphakia, surgical, left eye, has resulted in blindness of the left eye having only light perception, but no anatomical loss of the eye. 2. The Veteran’s right eye is not service connected and does not have a loss of visual acuity of 20/200 or less, or have loss of peripheral field of vision of 20 degrees or less. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 30 percent for the aphakia, surgical, left eye, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.383(a)(1), 4.3, 4.7, 4.14, 4.21, 4.75, 4.76, 4.79, Diagnostic Code 6029-6009 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he should be awarded a rating in excess of 30 percent for his aphakia, surgical, left eye (left eye disability). He is presently in receipt of a 30 percent rating plus special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of the loss of use of the eye having only light perception. The underlying rating is the only part of his compensation on appeal. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In this case, the Veteran’s left eye disability is rated under Diagnostic Code 6029-6009. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that aphakia (Diagnostic Code 6029) is rated under the criteria for unhealed eye injury (Diagnostic Code 6009). Under Diagnostic Code 6029, aphakia is to be evaluated based upon visual impairment and elevated one step, with a minimum rating of 30 percent, whether unilateral or bilateral. Under Diagnostic Code 6009, unhealed eye injuries are rated based upon incapacitating episodes. For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79, Diagnostic Code 6009 (Note). For a rating in excess of 30 percent based upon incapacitating episodes, the evidence must show incapacitating episodes having a total duration of at least four weeks during the prior twelve-month period. In this case, the Veteran has not claimed and the evidence does not show that he has had any incapacitating episodes. Rather, he claims an increase is warranted based upon his visual impairment alone. When only one eye is service-connected, as is the case here, and subject to the provisions of 38 C.F.R. § 3.383(a), the visual acuity of the nonservice-connected eye will be considered to be 20/40 for the purposes of rating the service-connected visual impairment. 38 C.F.R. § 4.75(c). The maximum rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75(d). Under 38 C.F.R. § 3.383(a), compensation is payable for certain combinations of service-connected and non-service-connected disabilities, as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran’s own willful misconduct. With respect to the eyes, this applies when there is impairment of vision in one eye as a result of service-connected disability, and impairment of vision in the other eye as a result of nonservice-connected disability, and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. 38 C.F.R. § 3.383(a)(1). The Board notes preliminarily that the Veteran is not service-connected for a right eye disability, and that his nonservice-connected right eye does not meet the criteria under 38 C.F.R. § 3.383(a)(1) for consideration in rating the service-connected left eye disability. Specifically, the medical treatment records do not show that the Veteran’s right eye has had a corrected distance visual acuity of 20/200 or less or a peripheral field of vision of 20 degrees or less at any time during the period on appeal. Most recently, an August 2018 VA optometry note shows right eye corrected distance visual acuity of 20/25, and there is no indication that the right eye peripheral field of vision was 20 degrees or less. Accordingly, the Veteran’s nonservice-connected right eye is not for consideration in rating the service-connected left eye disability. The 2012 VA examination report as well as the more recent August 2018 clinical records show ongoing left eye vision limited to light perception only. There is no anatomical loss of the eye. As noted above, the maximum rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75(d). Because the Veteran does not have anatomical loss of the left eye and is only service-connected for visual impairment in the left eye, 30 percent is the maximum rating available for his disability and, thus, he has been in receipt of the maximum rating allowed for his left eye disability throughout the entire rating period. The Board therefore finds that the criteria for entitlement to a rating in excess of 30 percent for the Veteran’s left eye disability have not been met at any time during the rating period. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel