Citation Nr: 21002903 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-41 195 DATE: January 19, 2021 ORDER A rating higher than 10 percent for ptosis of the left eye is denied. FINDING OF FACT The ptosis of the left eye manifests as impairment of left visual field to no less than 52.25 degrees in the left eye; but no incapacitating episodes due to eye disability, no impaired muscle function, and no compensable loss of central visual acuity. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for ptosis of the left eye have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Codes 6019-6080. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1996 to November 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for ptosis and denied service connection for tension headaches and otitis externa. In December 2014, the Veteran filed a notice of disagreement with this initial rating for left eye ptosis and the denial of service connection for tension headaches; the denial of service connect for left breast lump and the initial rating assigned for recurrent pharyngitis in a January 2014 rating decision; and the issue of service connection for myasthenia gravis, which had not yet been adjudicated. The issue of service connection for myasthenia gravis was subsequently denied in a January 2015 rating decision. In August 2016, the RO issued a statement of the case on the issues of higher initial ratings for recurrent pharyngitis and ptosis of the left eye and service connection for tension headaches, residuals of left fibrocystic breast lump, and painful scar from left breast lump removal. In January 2019, the Veteran requested that her claim be processed as a supplemental claim under the Rapid Appeals Modernization Program (RAMP). In a February 2019 correspondence, VA informed the Veteran that she did not have an appeal pending that could qualify for RAMP as her current appeal had been activated by the Board on July 31, 2018 and no longer qualified for RAMP. In April 2019, the Board granted an increased rating for recurrent pharyngitis; granted service connection for headaches; denied service connection for a left fibrocystic breast lump and left breast scar; and remanded the issue of an increased rating for left eye ptosis for further development. In a November 2020 rating decision, the Veteran’s rating for left eye ptosis was increased to 10 percent for the entirety of the appeal period, and she was awarded service connection for disfigurement associated with ptosis, left upper lid, which was assigned a 30 percent rating for the entire appeal period. Insofar as higher ratings are available for this disability and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. A rating higher than 10 percent for ptosis of the left eye The Veteran was originally granted service connection for left eye ptosis in the February 2014 rating decision on appeal. At that time, this disability was assigned a noncompensable (0 percent) rating effective January 30, 2012. During the pendency of this appeal, the Veteran’s rating for left eye ptosis was increased to 10 percent for the entirety of the appeal period and she was awarded a separate 30 percent rating for disfigurement associated with ptosis, left upper lid. See November 2020 rating decision. Disability ratings are determined by applying the criteria set forth in the 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). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s left eye ptosis is rated under hyphenated diagnostic code (DC) 6019-6080. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 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. 15,316 (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. The criteria for visual impairment, including impairments of visual fields under diagnostic codes 6080-6081, visual acuity under diagnostic codes 6061-6066, and/or muscle function under diagnostic codes 6090-6091, have remained unchanged. Impairment of visual fields are rated under DC 6080-6081 based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. §§ 4.77, 4.79. Impaired visual acuity is rated based on the best corrected distance vision. 38 C.F.R. §§ 4.76, 4.79. Impaired muscle function is rated under DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 38 C.F.R. §§ 4.78, 4.79. Furthermore, Diagnostic Code 6019 has not been affected by the April 2018 changes. The Board notes, however, that the revised criteria includes the General Rating Formula for Diseases of the Eye, which instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation and redefined incapacitating episodes to include an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. See 38 C.F.R. § 4.79, Note (1). Diagnostic Code (DC) 6019 instructs the rater to evaluate based on visual impairment, or, in the absence of visual impairment, on disfigurement. 38 C.F.R. § 4.79. DC 6080 provides that concentric contraction of visual field to 5 degrees warrants a 100 percent disability rating for bilateral loss, a 30 percent disability rating for unilateral loss, or is rated as 5/200 (1.5/60). Concentric contraction of visual field to 15 degrees, but not to 5 degrees, warrants a 70 percent disability rating for bilateral loss, a 20 percent disability rating for unilateral loss, or is rated as 20/200 (6/60). Concentric contraction of visual field to 30 degrees, but not to 15 degrees, warrants a 50 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/100 (6/30). Concentric contraction of visual field to 45 degrees, but not to 30 degrees, warrants a 30 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/70 (6/21). Concentric contraction of visual field to 60 degrees, but not to 45 degrees, warrants a 20 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/50 (6/15). Bilateral loss of the temporal half of the visual field warrants a 30 percent disability rating, unilateral loss warrants a 10 percent disability rating, or is rated as 20/70 (6/21). Bilateral loss of the nasal half of the visual field warrants a 20 percent disability rating, unilateral warrants a 10 percent disability rating, or is rated as 20/50 (6/15). 38 C.F.R. § 4.84a, Diagnostic Code 6080. According to Table III in 38 C.F.R. § 4.76a, the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; and up temporally, 55. The total visual field is 500 degrees. When only one eye is service connected, the other eye considered 20/40 for rating purposes regardless of the actual level of impairment. 38 C.F.R. § 4.75 (c). In her February 2013 statement, the Veteran reported visually noticeable left eye drop that increased with fatigue, limiting her vision. A December 2013 VA eye conditions disability benefits questionnaire (DBQ) diagnosed ptosis of the left eye. The Veteran’s visual acuity was 20/40 or better in both eyes for both distance and near vision. Her pupils were round and reactive to light. There was no afferent pupillary defect present. The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness in either eye. She did not have a corneal irregularity that resulted in severe astigmatism. She did not have diplopia. Internal and external eye examinations were normal. She did not have a visual field defect. The Veteran’s left eye ptosis did not cause visual impairment as it did not cover the visual axis. There was no anisocoria. The Veteran’s left eye ptosis did not cause disfigurement. She did not have any scarring or disfigurement attributable to her eye condition. This examiner recommended testing for myasthenia gravis to determine if the Veteran was a candidate for ptosis repair. In her December 2014 statement, the Veteran argued that she should be rated at 30 percent for her left eye ptosis based on asymmetry of a pair of features. She also argued that her visual acuity was worse than reflected on the DBQ and that visual acuity and visual field decreased towards the end of the day as she grew more tired and her eye drooped more. In August 2015, the Veteran submitted photographs showing her left eye droop. In the accompanying statement, she states that this drooping covers her pupil. The photographs show that, while her right eye is open enough to display nearly her entire iris, her left upper eyelid covers the top portion of her iris and some of her pupil. A May 2019 private treatment record noted the Veteran’s complaint that she could not wear her left contact lens without pain. This record also noted 3mm ptosis of the left eye. Her diagnoses also included bilateral myopia, regular astigmatism, and giant papillary conjunctivitis. Her contacts were refitted, and she was given medicated eye drops. The September 2019 VA eye conditions DBQ found visual acuity of 20/20 or better in both eyes for both distance and near vision. Her pupils were round and reactive to light. There was no afferent pupillary defect present. The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness in either eye. She did not have a corneal irregularity that resulted in severe astigmatism. She did not have diplopia. An external eye examination noted an approximately 3 mm ptosis of the left eyelid. An internal eye examination was normal bilaterally. She had a visual field defect, as described below: Meridian Normal Right Eye Left Eye Up 45 41 35 Up temporally 55 54 40 Temporally 85 78 74 Down temporally 85 74 70 Down 65 62 63 Down nasally 50 50 49 Nasally 60 50 46 Up nasally 55 48 41 Total: 500 457 418 Average Concentric Contraction 62.5 57.125 52.25 She did not have loss of a visual field or a scotoma. She did not have legal (statutory) blindness based upon visual field loss. The left eye ptosis caused minimal loss of superior visual field. The examiner noted noticeable visual asymmetry to the Veteran’s face. The Veteran did not have any scarring or disfigurement attributable to her eye condition. During the prior twelve-month period, the Veteran had at least one, but less than three documented medical visits for treatment of an eye condition, but this treatment did not include systemic immunosuppressant or biologic agent, intravitreal or periocular injections, laser treatments, or surgical intervention. Ultimately, the examiner found no incapacitating episodes attributable to eye condition in the prior twelve-month period. Functionally, the Veteran reported some variation in the magnitude of her ptosis, which occasionally interfered with driving. The October 2020 eye conditions DBQ notes the Veteran’s complaints of a drooping left eyelid, worse in the morning and in traffic, that made driving difficult. Her uncorrected distance visual acuity was 5/200 or worse in the right eye and 10/200 in the left eye, both corrected to 20/20 or better. Her near vision acuity was 20/20 or better in both eyes for both uncorrected and corrected. Her pupils were round and reactive to light. There was no afferent pupillary defect present. The Veteran did not have anatomical loss, light perception only, extremely poor vision, or blindness in either eye. She did not have a corneal irregularity that resulted in severe astigmatism. She did not have diplopia. An external eye examination noted left eye ptosis. An internal eye examination was normal bilaterally. She had a visual field defect, as described below: Meridian Normal Right Eye Left Eye Up 45 45 30 Up temporally 55 55 45 Temporally 85 85 85 Down temporally 85 85 85 Down 65 65 65 Down nasally 50 50 50 Nasally 60 60 60 Up nasally 55 55 55 Total: 500 500 485 Average Concentric Contraction 62.5 62.5 60.625 She did not have loss of a visual field or a scotoma. She did not have legal (statutory) blindness based upon visual field loss. She had scarring or disfigurement attributable to her eye condition, which was addressed in a separate DBQ. During the prior twelve-month period, the Veteran had no incapacitating episodes attributable to an eye condition. Functionally, the Veteran reported some interference with driving and difficulty working, as she sometimes had to hold her left eyelid open when tired and working on a computer or dealing with customers. The examiner noted that the Veteran’s left eyelid appeared drooping and encroaching on visual axis. There was a cosmetic difference in the symmetry of both eyelids that can be seen on the photograph. The October 2020 scars/disfigurement DBQ found ptosis of the left eyelid. There was no abnormal pigmentation or texture of the head, face, or neck. There were no unstable or tender scars. There was tissue loss or distortion of the left eyelid. There was ptosis of the left upper lid with a marginal reflex distance of 0 mm, which is less than the usual distance of 2 mm. This interfered with the Veteran’s ability to efficiently drive and work as she often has to lift up the lid, especially when tired, as it droops and interferes with visual field. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms associated with scars or disfigurement of the head, face, or neck. Based on the above, the Veteran’s left eye ptosis manifests as impairment of left visual field to no less than 52.25 degrees in the left eye. This is consistent with the current 10 percent rating based on impaired visual field. See 4.79, DC 6080. As only one eye is service connected, a higher rating under this diagnostic code would require additional visual field impairment with remaining visual field of 30 degrees or less. This degree of impairment is not shown here. The record does not show impaired muscle function or a compensable loss of central visual acuity, so rating under diagnostic codes 6090-6091 and/or diagnostic codes 6061-6066, is not warranted. Finally, a higher rating is not warranted for incapacitating episodes. Again, under the revised General Rating Formula for Diseases of the Eye, a Veteran is entitled to either a rating based on visual impairment or a rating based on incapacitating episodes, not both. While there are some documented medical visits for this disability, there is no showing of incapacitating episodes attributable to eye condition. These visits did not include the type of medical intervention contemplated by the revised definition of an incapacitating episode. Moreover, even if they did, their frequency, less than three within a twelve-month period, would not warrant a rating higher than the current 10 percent. See 38 C.F.R. § 4.79. Thus, a rating higher than 10 percent for left eye ptosis is not warranted. The Board has also considered whether a separate rating higher than the current 30 percent is warranted for the Veteran’s associated scars. This current 30 percent rating is reflects disfigurement of the face with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. See 38 C.F.R. § 4.118, DC 7800. A higher rating under this diagnostic code would require gross distortion or asymmetry of at least two features or paired sets of features or at least four characteristics of disfigurement. See id. The 8 characteristics of disfigurement are: (1) Scar is 5 or more inches (13 or more cm.) in length; (2) Scar is at least one-quarter inch (0.6 cm.) wide at the widest part; (3) Surface contour of scar is elevated or depressed on palpation; (4) Scar is adherent to underlying tissue; (5) Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7800. The small size of the ptosis, as it is limited to her left eyelid, rules out six of the characteristics of disfigurement and, therefore, prevents a finding of more than two characteristics of disfigurement as required for a higher rating. Similarly, the Veteran’s left eye ptosis affects only one feature, her left eye, therefore a higher rating based on multiple feature gross distortion or asymmetry is not possible. Therefore, a separate rating higher than 30 percent for associated disfigurement associated with ptosis, left upper lid, is not warranted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.