Citation Nr: 20046879 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 18-41 852 DATE: July 13, 2020 ORDER The reduction from 30 percent to a non-compensable rating for loss of vision secondary to suspected exposure of laser was improper; restoration of a 30 percent rating is granted effective March 1, 2018, subject to the laws and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. At the time of the reduction, the Veteran’s service-connected eye disability had been rated as 30 percent disabling for a period of more than five years. 2. Any improvement found or observed in the Veteran’s eye disability was not shown to have been maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction of the rating for eye disability from 30 percent to a non-compensable rating, effective March 1, 2018, was improper; restoration is warranted. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.105, 3.344 (2019); 38 C.F.R. § 4.84a, Diagnostic Code 6078 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to March 1988 and from May 1988 to February 1994. The Veteran testified before the undersigned Veterans Law Judge during an April 2020 virtual hearing; a transcript is of record. Whether the reduction from 30 percent to a non-compensable rating for the Veteran’s eye disability was proper. Congress has provided that a veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155 ; 38 C.F.R. § 3.105 (e). For ratings that have been in effect for five years or more, as the Veteran’s eye disability is in this case, reduction is warranted when reexamination discloses sustained material improvement. See 38 C.F.R. § 3.344 (a), (b); see also Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). When a rating reduction has the effect of reducing the compensation paid to a veteran, 38 C.F.R. § 3.105 imposes certain procedural requirements before VA can effectuate the rating reduction. The Veteran’s bilateral eye disability has been evaluated under Diagnostic Code 6078. 38 C.F.R. § 4.84a, Diagnostic Code 6078 (prior to December 10, 2008). Diagnostic Code 6078 rated impairment of central visual acuity when visual acuity in one eye is 20/100 or better; however, Diagnostic Code 6078 was removed from the amended regulations in December 2008 and now corresponds to Diagnostic Code 6066 in the revised rating criteria. 38 C.F.R. § 4.79, Diagnostic Code 6066 (2019). VA’s General Counsel held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the Veteran. As such, the Board will consider both versions of the relevant schedular ratings. Under Diagnostic Code 6078, for vision in one eye of 20/100, a 50 percent rating will be assigned when there is vision in the other eye of 20/100, a 30 percent rating will be assigned when there is vision of the other eye of 20/70, and a 20 percent rating will be assigned when there is vision in the other eye of 20/50. For vision in one eye of 20/70, a 30 percent rating will be assigned when there is vision in the other eye of 20/70, and a 20 percent rating will be assigned when there is vision in the other eye of 20/50. For vision in one eye of 20/50, a 10 percent rating will be assigned when there is vision in the other eye of 20/50. Diagnostic Code 6066, now in force, provides rating criteria for impairment of visual acuity. 38 C.F.R. § 4.76 (b) dictates that evaluation of visual acuity should be done on the basis of corrected distance vision with central fixation, unless the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye. 38 C.F.R. § 4.79, Diagnostic Codes 6061-6066 (2019). 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. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. A 30 percent rating is warranted (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; and (7) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/40. A 40 percent rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/50 or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40. A 50 percent disability rating is warranted (1) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/70; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/70; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/50. A 60 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/100; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/100; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/100; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/70 or 20/100. A 70 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/200; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/200; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/200; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/200; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/200. An 80 percent disability rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 15/200; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 15/200; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 15/200; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 15/200; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 15/200. A 90 percent disability rating is warranted only (1) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 10/200; (2) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 10/200; (3) when vision in one eye is no more than light perception and vision in the other eye is correctable to 10/200; or (4) when there is anatomical loss of one eye and vision in the other eye is correctable to 10/200. A 100 percent disability rating is warranted only (1) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 5/200; (2) when vision in one eye is no more than light perception and vision in the other eye is correctable to 5/200; (3) when there is anatomical loss of one eye and vision in the other eye is correctable to 5/200; (4) when there is no more than light perception in both eyes; or (5) when there is anatomical loss of both eyes. Originally, the Veteran’s eye disability was rated 30 percent disabling when service connection was grated effective March 1, 1994. Then, the rating was reduced to 10 percent disabling effective November 1, 2008 and increased to 30 percent disabling effective December 15, 2008. The rating was determined under Diagnostic Code 6078, 38 C.F.R. § 4.84a. In August 2017, the Regional Office (RO) proposed to reduce the Veteran’s eye disability rating to a non-compensable rating. He was provided with the opportunity for a hearing and to provide additional evidence. In December 2017 rating decision, the RO reduced the rating to a zero percent effective March 1, 2018. As such, the reduction is not invalid because of a procedural defect. The effective date of the implemented reduction was more than 5 years after December 15, 2008. Thus, the provisions of 38 C.F.R. § 3.304(a) apply. In determining whether there has been sustained material improvement, it is necessary to discuss the VA examinations conducted around the time at which the rating for the eye disability was increased to 30 percent and thereafter. A May 2000 private treatment record indicates that the Veteran’s visual acuity at distance without correction was 20/40 in the right eye and 20/20-1 in the left eye when he looked above and below letters and 20/200 in the right eye and 20/40 in the left eye when he looked straight at letters. An October 2007 VA examination indicates that the best corrected visual acuity at distance was 20/60 (or 20/40 with eccentric viewing) in the right eye and 20/20 for the left eye. A February 2009 VA examination reflects that the best-corrected visual acuity at distance was 20/100 for the right eye and 20/60 for the left eye (with reading single letters). The examiner stated that the Veteran had decreased central vision in both eyes due to exposure to a laser during the military service. The examiner noted that this distance acuity was lower than the initial VA examination and more accurate due to isolating single letters on the acuity chart. The examiner stated that the corrected distance acuity on this examination exemplified the Veteran’s central visual acuity in both eyes because it did not allow him to eccentrically fixate, by which he could improve his vision status. No other visual impairment due to service-connected condition was noted. In a March 2009 addendum to the February 2009 VA examination, the examiner further clarified that the measurement at the February 2009 examination were different from the October 2007 VA examination due to utilizing single isolated letters because the Veteran was not allowed to use eccentric fixation. The examiner stated that in real-life situations, the Veteran would not be able to eccentrically view all the time and that these more recent measurements were more typical of real-life visual acuity. An October 2011 VA treatment record indicates that there were minimal changes in the Veteran’s vision bilaterally with some gradual increase in floaters bilaterally. The corrected vision at distance was 20/30 in the right eye and 20/20-2 in the left eye. With eccentric vision, the corrected vision at distance was 20/20-2 in the right eye and 20/20 in the left eye. The clinician, who examined the Veteran in the October 2007 and February 2009 VA examinations, states that macula scar in the right eye was stable. The clinician indicated that it was still uncertain if there was any true vision loss in the right eye from reginal pigment epithelium changes or if these macular changes were an actual scar or caused by laser exposure in the military. The clinician stated that it would be unlikely for a person to eccentrically view to 20/20, but that the condition and vision was stable. A September 2015 VA examination reflects the corrected visual acuity at distance was 20/40 or better in each eye. The examiner noted the acuities were variable with blink and with effort. The Veteran reported during the examination that he was making efforts to read letters. As for the eccentric viewing, the examiner stated that it was physiologically impossible to see 20/20 with eccentric fixation due to the structure of the retina. In a September 2015 rating decision, the RO found that there was no sustained improvement in the eye disability and continued the rating of 30 percent under Diagnostic Code 6078. A November 2017 VA examination, which was conducted by the same examiner who examined the Veteran in the September 2015 examination, reflects that corrected visual acuity at distance was 20/40 or better in each eye. A November 2017 VA optometry note indicates that the Veteran reported having clear and comfortable vision with his current pair of glasses and complained of a longstanding central scotoma from laser damage. The corrected visual acuity at distance was 20/20-1 in the right eye and 20/20 in the left eye. The clinician noted that the Veteran was moving the right eye to see the line at 20/20-1. The clinician agreed with the prior documented uncertainty concerning the Veteran’s vision as noted in the October 2011 VA treatment record. Based on the November 2017 VA examination results and contemporaneous treatment records, the RO reduced the rating to zero percent effective March 1, 2018 in a December 2017 rating decision. The Board finds that the September 2015 and November 2017 VA examinations do not sufficiently show that there has been sustained material improvement of the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. § 3.344 (a); Faust, 13 Vet. App. at 350. The evidence indicates that the Veteran’s visual acuity with eccentric viewing has been correctable to a non-compensable level during the entire period when a 30 percent rating was in effect. In fact, the 30 percent rating was restored since December 15, 2008 based on the loss of visual acuity at the February 2009 VA examination when the Veteran did not use eccentric viewing. The October 2011 VA treatment record indicates that the corrected visual acuity at distance without eccentric viewing showed improvement. However, more recent examinations in September 2015 and November 2017 and VA treatment records do not include a result of corrected visual acuity at distance without eccentric viewing. As such, the evidence of record fails to show that there has been a sustained material improvement of the Veteran’s ability to function under the ordinary conditions of life and work. (Continued on the next page)   Lastly, the Board notes that Diagnostic Code 6078 (pre-2008 regulation) and Diagnostic Code 6066 (post-2008 regulation) produce the same rating of a 30 percent for the Veteran’s visual acuity without eccentric viewing, which was, at worst, measured as 20/100 in the right eye and 20/60 in the left eye according to the February 2009 VA examination. As a result, the Board finds the rating reduction improper and restoration of the 30 percent rating for the eye disability is warranted, effective March 1, 2018. C. TRUEBA 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.