Citation Nr: 21002698 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-59 157 DATE: January 14, 2021 ORDER A rating higher than 30 percent prior to May 5, 2016, for bilateral cataracts with diabetic retinopathy is denied. A 100 percent rating for bilateral cataracts with diabetic retinopathy prior to February 18, 2020, is granted. A rating higher than 50 percent as of February 18, 2020, is denied. FINDINGS OF FACT 1. Prior to May 6, 2016, the Veteran’s bilateral eye disability manifested in corrected distance vision in the right eye of at worst 5/200, and no worse than 20/40 in the left eye. 2. Between May 5, 2016, and February 18, 2020, the Veteran’s bilateral eye disability manifested in corrected distance vision in the right eye of at worst 10/200, and in the left eye at worst of 5/200 or light perception only in the left eye; and a bilateral contraction of a visual field with average remaining field of 5 or less degrees. 3. As of February 18, 2020, the Veteran’s bilateral eye disability has manifested in no worse than corrected distance vision in both eyes of 20/20; and bilateral contraction of a visual field with average remaining field of between 16 and 30 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent prior to May 5, 2016, for bilateral cataracts with diabetic retinopathy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6029, 6006, 6080. 2. The criteria for a 100 percent rating for bilateral cataracts with diabetic retinopathy between May 5, 2016, and February 18, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, DC 6029, 6006, 6080. 3. The criteria for a rating higher than 50 percent as of February 18, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, DC 6029, 6006, 6080. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1995 to April 2005. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s bilateral postoperative cataracts with diabetic retinopathy (hereinafter “eye disability”) has been assigned a 30 percent rating prior to May 5, 2016, a 100 percent rating from May 5, 2016, and September 29, 2016, an 80 percent from September 29, 2016, and a 50 percent rating from February 18, 2020, under DC 6029 for cataracts and DC 6006 for retinopathy, rated pursuant to DCs 6064, 6065 and 6080 for decreased visual acuity and impairment of visual field. 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 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 predate the effective date of the amendments. Both the former and revised criteria distinguish preoperative and postoperative cataracts. For preoperative cataracts, the former criteria instructed to evaluate based on visual impairment and the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. For postoperative cataracts, both the former and revised rating criteria distinguish between pseudophakia and aphakia. If there is a replacement lens present (pseudophakia), then the former criteria instructed to evaluate based on visual impairment whereas the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. If there is no replacement lens (aphakia), both the former and revised criteria instruct to evaluate based on aphakia (DC 6029). The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. 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). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. 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). DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in the poorer eye is 20/50, a10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Where the visual acuity in the poorer eye is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where the visual acuity in the poorer eye is 20/100, the following ratings apply. A 50 percent rating is warranted where vision in the other eye is also 20/100. A 30 percent rating is warranted where vision in the other eye is 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where the visual acuity in the poorer eye is 20/200, the following ratings apply. A 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where the visual acuity in the poorer eye is 20/200, the following ratings apply. A 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where the visual acuity in the poorer eye is 5/200 (DC 6065), the following ratings apply. A 50 percent rating is warranted where vision in the other eye is 20/70. A 40 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/40. Evaluation of visual field is based on the remaining field of vision in each eye. Under DC 6080, a 10 percent rating is warranted for unilateral concentric contraction of the visual field with remaining field of 16 to 60 degrees; bilateral contraction of the visual field with remaining field of 46 to 60 degrees; or the unilateral loss of the temporal half, nasal half, inferior half, or superior half of visual field. A 20 percent rating is warranted for unilateral concentric contraction of the visual field with remaining visual field of 6 to 15 degrees. A 30 percent is warranted for unilateral concentric contraction of the visual field with remaining visual field of 5 degrees; or bilateral contraction of the visual field with remaining field of 31 to 45 degrees. Normal visual field extant at eight principle meridians is as follows: temporally is 85 degrees, down temporally is 85 degrees, down is 65 degrees, down nasally is 50 degrees, up nasally is 55 degrees, up is 45 degrees, and up temporally is 55 degrees. 38 C.F.R. § 4.76a, Table III (2017). The extent of contraction of visual field in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45-degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. 38 C.F.R. § 4.77(a). The degrees lost are then added together to determine total degrees lost. The sum is divided by eight and represents the average contraction of the visual field. In June 2013, the Veteran reported blurry vision in the right eye beginning several months earlier. The Veteran reported that he noticed a “broken blood vessel” in his eye a week earlier. The Veteran was diagnosed with vitreous hemorrhage of the right eye, with diabetic retinopathy and cataracts. Corrected distance vision in the left eye was 20/25, and in the right eye the Veteran could only see hand movements. At a September 2013 VA examination, the Veteran reported blurriness and/or cloudiness in the right eye, with no problems in the left eye. On examination, the Veteran was only able to count fingers at 1 foot from the right eye. Corrected distance vision in the left eye was 20/40. The examiner found no visual field defect. Internal examination found vitreous debris and scattered intraretinal hemorrhage in the right eye. External examination found the presence of posterior chamber intraocular lenses (PCIOL), status post cataract removal. The examiner found that the Veteran’s visual impairment was due to the retinopathy. There was no scarring or disfigurement, incapacitating episodes, or functional impact on the Veteran’s ability to work found. In October 2013, the Veteran underwent a laser treatment procedure in the right eye, after which records indicate he experienced improvement in the visual acuity of the right eye. In January 2014, the Veteran underwent retina vitrectomy and Endolaser treatment for the right eye. By May 2014, the Veteran’s visual acuity in both eyes was normal, no worse than 20/40. At a February 2016 VA diabetic retinal consult, the provider found that the Veteran had a missing visual field in the left eye and referred him to optometry as soon as possible. At a May 2016 VA examination, the Veteran reported that after the January 2014 vitrectomy, his vision in the right eye gradually became increasingly blurry. He also stated that over the prior year, vision in the left eye had also become very blurry. On examination, corrected distance vision in the right eye was 10/200, and the Veteran had no more than light perception in the left eye. The Veteran was not able to recognize test letters at 1 foot or closer in the left eye. He was able to perceive objects, hand movements or count fingers at 3 feet with both eyes. External examination found the presence of PCIOL in each eye. Internal examination found scattered hemorrhages, vitreal debris and epiretinal membranes in the right eye. The examiner had very poor views for the left eye. The examiner found a visual field defect in the form of contraction of visual field in the right eye with average remaining field of 5 degrees, and loss of the visual field in the left eye. The examiner opined that the Veteran’s visual impairment resulted from the retinal conditions. There was no evidence of scarring or disfigurement or incapacitating episodes due to the eye conditions. The examiner found functional impact in the form of severely impaired vision causing legal blindness in the left eye. In June 2016, the Veteran still had no more than light perception only in the left eye. In July 2016, the Veteran underwent surgery for vitreous hemorrhage in the left eye. At a September 2016 VA examination, the Veteran continued to report blurred vision with poor periphery in the right eye. He stated that he saw a dark cloud in the left eye prior to the July 2016 procedure, since which he has seen some improvement but still sees “three connected bubbles.” On examination, corrected distance vision was 20/70 in both eyes. While the examiner indicated that there was a difference equal to two or more lines on the Snellen test type chart between distance and near corrected vision being worse, corrected near vision was documented as 20/70 in the right eye and 20/100 in the left eye (or one step). The examiner stated this was due to a gas bubble that remained from surgery in the left eye, which affected near vision more than distance vision. The examiner found a visual field defect in the form of contraction of visual fields, with average remaining field of 5 degrees in each eye, after rounding. The examiner opined that this constituted legal blindness based on visual field loss. Internal examination found epiretinal membranes and scattered dot/blot hemorrhage along with laser scarring from bilateral procedures. The Veteran’s visual impairment was attributed to his retinal condition. There was no evidence of scarring or disfigurement, or incapacitating episodes. The examiner found functional impact in the form of legal blindness based on visual field testing. Beginning February 2017, the record begins to show some improvement in the Veteran’s visual acuity. No specific findings regarding visual fields were found in the records for this period. The Veteran’s improvement is reflected in the next VA examination in October 2019. At the examination, the Veteran reported he experiences blurred vision and poor night vision. Corrected distance vision was 20/20 in both eyes. Corrected near vision was also 20/20 in both eyes. The examiner found a visual field defect in the form of contraction of visual fields with average remaining field of 47 degrees in the right eye and 37 degrees in the left eye, after rounding. The Veteran’s visual impairment was attributed to his retinal condition. There was no evidence of scarring or disfigurement, or incapacitating episodes. The examiner found functional impact in the form of difficulty seeing in low light conditions. The examiner noted that since the July 2016 procedure, the Veteran’s condition had improved and appeared to be stable with no active retinopathy at that time. At a February 2020 VA examination, the examiner noted some loss of peripheral vision due to diabetic retinopathy and blurred near vision due to cataracts. On examination, corrected distance was 20/20 in both eyes. Corrected near vision was also 20/20 in both eyes. Some dot/blot hemorrhages were found in the vessels of the eyes. The examiner found a visual field defect in the form of contraction of visual field with remaining field of 27 degrees in the right eye and 28 degrees in the left eye, after rounding. The Veteran’s visual impairment was attributed to the diabetic retinopathy, specifically retinal scars due to laser procedures in both eyes. There was no evidence of scarring or disfigurement, or incapacitating episodes. The examiner found functional impact in the form of zero to one week of work time lost in the prior 12 months, and blurred vision especially while doing near work or driving at night. After review of the evidence, the Board finds that prior to May 5, 2016, the preponderance of the evidence is against a finding that a rating higher than 30 percent is warranted. From the Veteran’s claim date through May 5, 2016, the evidence indicates that he experienced decreased vision in his right eye caused by retinopathy, leading to an ability to do no more than count fingers form the right eye. During this time, however, visual acuity in the left eye was within normal limits. Further, the evidence does not contain evidence during this time of visual field defects. Normal vision in one eye combined with counting fingers or 5/200 in the other eye, warrants no more than a 30 percent rating. Therefore, a rating higher than 30 percent is not warranted during that period. Beginning May 5, 2016, the Veteran has been assigned a 100 percent rating based on decreased visual acuity and impairment of visual field in both eyes. The Board finds that this 100 percent rating is warranted through February 18, 2020 and should not have been reduced beginning September 26, 2016. The Veteran’s visual acuity at the September 2016 VA examination was 20/70 in both eyes, which warrants a 30 percent rating. Visual fields at the examination showed a contraction with an average remaining field of 5 degrees bilaterally, which warrants a 100 percent rating. The evidence shows some fluctuation of visual impairment after the September 2016 VA examination. However, there are no specific findings for visual fields until the next VA examination in October 2019. While the that examination showed some improvement, the following VA examination in February 2020 again showed visual field impairment warranting a 50 percent rating. The February 2020 VA examination showed average remaining field of 27 degrees in the right eye and 28 degrees in the left eye, which warrants a 50 percent rating. Although some improvement was shown prior to this examination, the Board finds that the showing of improvement was not sustained until the February 2020 VA examination, which confirms that the Veteran’s visual fields had improved. The Board also notes that the October 2019 VA examiner explicitly opined that the Veteran’s condition had improved and appeared stable. Therefore, the Board finds that the 50 percent rating as of February 18, 2020, is appropriate and that the preponderance of the evidence is against a finding that a rating higher than 50 percent is warranted as of that date. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 30 percent is warranted for the Veteran’s bilateral eye disability prior to May 5, 2016. Between May 5, 2016, and February 18, 2020, the Board finds that a 100 percent rating is warranted. As of February 18, 2020, the evidence indicates that the reduction in rating is appropriate the preponderance of the evidence is against a finding that a rating higher than 50 percent is warranted as of that date. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.