Citation Nr: 20021603 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-35 111 DATE: March 26, 2020 ORDER An initial 10 percent disability rating for bilateral chorioretinal scars is granted, subject to the laws and regulations governing the award of monetary benefits. REFERRED The issues of entitlement to service connection for headaches, tension, and heart trouble were raised in an April 2014 statement from the Veteran and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, localized scars of both retinae are centrally located and result in irregular images. CONCLUSION OF LAW The criteria for a 10 percent disability rating for chorioretinal scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.75, 4.76, 4.79, Diagnostic Code 6011. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1955 to June 1959 and from September 1959 to September 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 RO decision which granted service connection for bilateral chorioretinal scars, and assigned a noncompensable disability rating. In May 2017, the Board advanced the case on the Board’s docket. In June 2017, the Board remanded the case for further evidentiary development. Such development has been accomplished and the case is once again before the Board for further appellate review. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Rating principles dictate that the Veteran’s disability be evaluated under whichever appropriate diagnostic code will provide him the greatest benefit. In evaluating claims for increased ratings, we must evaluate the Veteran’s condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. Evaluation of ocular impairment is generally based upon disability measured by loss of visual acuity, disability measured by loss of field vision, or based on incapacitating episodes caused by the service-connected eye disability. 38 C.F.R. §§ 4.75, 4.76. When measuring impairment resulting from loss of visual acuity, the best distant vision obtainable after best correction by glasses will be the basis of rating. 38 C.F.R. §§ 4.75, 4.76, 4.77, 4.84a. Retinal scars, however, are covered by the provisions of Diagnostic Code 6011 which set forth a 10 percent disability rating when localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, are centrally located and result in an irregular, duplicated, enlarged, or diminished image. Alternatively, retinal scars can be evaluated based upon loss of visual acuity, loss of field vision, or incapacitating episodes, if this method would result in a higher disability rating. 38 C.F.R. § 4.79, Diagnostic Code 6011. The Veteran has disagreed with the noncompensable (zero percent) disability rating assigned to his service-connected chorioretinal scars, asserting that his eye problems prevent him from driving and make reading difficult. He reports having pain in his eyes, severe enough to wake him up at night; and floaters which prevent him from driving and make reading difficult. The Veteran’s service treatment records reflect hospitalization in August 1960 for a toxoplasmosis infection. A 1995 private ophthalmological record shows the presence of chorioretinal scars in both eyes consistent with toxoplasmosis. Recent medical records, including several VA examination reports and a private medical report submitted by the Veteran’s attorney, reflect the presence of chorioretinal scars, floaters, and age-related cataracts in both eyes. There is some discrepancy in the medical evidence, to include some actual contradictions among the various physician examiners and reviewers, as to whether the scars are in fact “central,” and as to whether all of the Veteran’s eye symptoms are actually caused by the nonservice-connected cataracts; or whether some of his symptoms, including some of his blurring symptoms, may be related to the chorioretinitis. What is clear, however, is that his vision is correctable to within normal limits, that although he has contracted visual fields, the contraction is due to his cataracts, not to his retinal scarring. Also undisputed is that he does not have incapacitating episodes within the meaning of the rating schedule. Although the Board considered remanding for better clarification of the medical evidence, because it is clear that a disability rating higher than 10 percent is not warranted based upon visual acuity, visual fields, or incapacitating episodes, and in light of the urgency in reaching a final adjudication for the reasons this case has been advanced on the docket, resolving any remaining benefit of the doubt as to whether the Veteran’s retinal scars cause irregular images, is a better approach. Therefore, the Board finds that the Veteran’s retinal scars cause irregular images, which warrants a 10 percent disability rating under Diagnostic Code 6011. This is the highest rating provided under this Diagnostic Code, absent other visual impairment caused by the scars. Thus, the evidence supports the assignment of a 10 percent rating for bilateral chorioretinal scars, and no higher. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.