Citation Nr: 20040167 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 18-13 532 DATE: June 11, 2020 ORDER Entitlement to an initial compensable rating prior to May 13, 2018 and a rating in excess of 20 percent thereafter for iritis of the left eye is denied. FINDINGS OF FACT 1. Prior to May 13, 2018, the Veteran’s left eye iritis manifests in corrected distance vision of 20/40 or better bilaterally with no visual field defect or impairment of muscle function. The evidence does not indicate he experienced an incapacitating episode requiring prescribed bedrest. 2. Since May 13, 2018, the evidence shows that the Veteran had at least 5 treatment visits, but no more, for the left eye iritis due to incapacitating episodes during a 12-month period. Moreover, the evidence shows that for the entire appeal period, there was no anatomical loss of the left eye. CONCLUSIONS OF LAW 1. For the period prior to May 12, 2018, the criteria for a compensable evaluation for iritis of the left eye have not been met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.75, 4.76(a), 4.77, 4.79, 4.118, Diagnostic Codes 6000-6066 (2017). 2. For the period since May 13, 2018, the criteria for a rating in excess of 20 percent for iritis of the left eye have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.75 (d), 4.76(a), 4.77, 4.79, Diagnostic Code 6000-6066 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1947 to June 1978. His decorations include a Korean Service Medal, Vietnam Service Medal, and Combat Action Ribbon. The Board previously remanded the issue for further development in July 2018. The case has now been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, the Board will evaluate the issues as appeals for higher evaluations of the original awards. Iritis of the left eye The Veteran is currently assigned a noncompensable evaluation for left eye iritis prior to May 13, 2018 and a 20 percent rating thereafter, pursuant to 38 C.F.R. § 4.79, Diagnostic Code 6009-6066. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic Code 6000 pertains to choroidopathy, including uveitis, iritis, cyclitis, and choroiditis, and Diagnostic Codes 6061 to 6066 encompass the table for Impairment of Central Visual Acuity. 38 C.F.R. § 4.79. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect on May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot pre-date the effective date of the amendments. Under the older criteria, the General Rating Formula for Diagnostic Codes 6000 through 6009. evaluated the disability on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A note following the General Rating Formula indicates that, 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 (2017). Under the revised criteria, Diagnostic Code 6000 provides that the disability should be evaluated under the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye indicates that the disability should be rated on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. 38 C.F.R. § 4.79 (2018). Here, the medical evidence of record, to include April 2013 and January 2020 VA examinations and private treatment records, does not indicate that the Veteran’s left eye disability required prescribed bed rest and treatment by a healthcare provider for the entire appeal period. Therefore, Diagnostic Code 6000 under the old regulation permits only a non-compensable rating for the Veteran’s left eye iritis for the entire appeal period. After May 13, 2018, the medical evidence of record, to include January 2020 VA examination and private treatment records, indicates that the Veteran had flareup of left eye iritis and made frequent medical visits in recent years. The private treatment records document that the Veteran had medical visits for the service-connected left eye iritis, at least 5 times, but not more, during a 12-month period from July 2018 to July 2019. The January 2020 VA examiner noted that the Veteran had incapacitating episodes due to recurrent iritis at least 1 but less than 3 and he was treated with topical steroid medication in frequent followup visits. Therefore, the Veteran’s left eye symptomatology is more nearly approximated by the rating criteria for 20 percent under Diagnostic Code 6000. The Board also notes that the Veteran’s left eye disability is evaluated under rating criteria for visual impairment of one eye. As such, the maximum evaluation for such disability must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75 (d). The evidence does not show an anatomical loss of the left eye for the entire appeal period. The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under Diagnostic Code 7800). 38 C.F.R. § 4.75 (d). The evidence does not show other type of impairment for the Veteran’s condition. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75 (a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76 (c). In any case where an examiner reports that there is a difference equal to two or more scheduled steps between near and distance corrected vision, with the near vision being worse, the examination report must include at least two recordings of near and distance corrected vision and an explanation of the reason for the difference. In these cases, evaluation will be based on corrected distance vision adjusted to one step poorer than measured. 38 C.F.R. § 4.76 (b)(3). In this case, the Veteran’s corrected distance and near vision was 20/40 or better bilaterally during April 2013 examination. During January 2020 VA examination, corrected distance vision was 20/50 and corrected near vision was 20/40, both bilaterally. There is further no other visual acuity testing of record showing that a compensable evaluation would be warranted for loss of left eye visual acuity. Thus, under Diagnostic Code 6066, the Veteran’s left eye disability would be evaluated at a non-compensable rating prior to May 13, 2018 and at a 10 percent rating thereafter. Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.77. The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.79. In this case, there is no evidence that the Veteran’s service-connected left eye disability results in any impairment of visual field. Evaluations of visual impairment of muscle function is based on the degree of diplopia. 38 C.F.R. § 4.78. In this case, there is no evidence that the Veteran’s service-connected left eye condition results in any impairment of muscle function. In conclusion, prior to May 13, 2018, the Veteran’s left eye disability does not warrant a compensable rating under either old Diagnostic Code 6000 or Diagnostic Code 6066. Moreover, for the period after May 13, 2018, the left eye disability does not warrant a rating higher than 20 percent under revised Diagnostic Code 6000, 39 C.F.R. § 4.79 (2019) and 38 C.F.R. § 4.75(d). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, Associate 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.