Citation Nr: 21004060 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-52 176 DATE: January 25, 2021 ORDER Entitlement to an initial compensable rating for bilateral cataracts is denied. FINDING OF FACT For the entire initial rating period on appeal, the Veteran had bilateral visual acuity of 20/40 or better without aphakia and had no visual impairment attributable to the service-connected bilateral cataracts; he did not have any incapacitating episode due to his service-connected bilateral cataracts. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral cataracts have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.21, 4.75, 4.76, 4.79, Diagnostic Codes 6027, 6066. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to December 1968. The Board previously remanded the issue for further development in August 2020. The case has now been returned to the Board for appellate review. Entitlement to an initial compensable rating for bilateral cataracts Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran has appealed from the initial ratings assigned. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans’ Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Cataracts of any type are rated under Diagnostic Code 6027. 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 May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim considering 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 former criteria for Diagnostic Code 6027 instructed to evaluate based on visual impairment if preoperative and if postoperative and replacement lens is present (pseudophakia). The revised criteria for Diagnostic Code 6027 instruct to evaluate based on the General Rating Formula for Diseases of the Eye if preoperative and if postoperative and replacement lens is present. The May 2018 revision did not change rating criteria for visual impairment. The General Rating Formula for Diseases of the Eye, in effect after the May 2018 revision, instructs to rate based on incapacitating episodes or visual impairment, whichever would afford a higher rating. Thus, the change to the rating criteria effectively just added consideration of incapacitating episodes because visual impairment was to be considered in the former criteria. Regarding combining ratings under 38 C.F.R. § 4.25, this language appears to clarify how the rating criteria should be applied and does not represent a substantive change; separate disabling effects should have been combined pursuant to 38 C.F.R. § 4.25 under the former criteria. For a compensable rating based on incapacitating episodes under the General Rating Formal for Diseases of the Eye, a veteran must have required at least one but less than 3 treatment visits for his eye condition during the past 12 months. 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. 38 C.F.R. § 4.79, Note (1) (2018). 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 Veteran has not contended, and the record does not suggest, that the Veteran had undergone any treatment visits for his eye condition within 12 months of the effective date of the change in the rating criteria. Therefore, a compensable rating is not warranted based on incapacitating episodes. As the evidence demonstrates, the Veteran underwent a cataract surgery in December 2012 and has a diagnosis of pseudophakia or post-operative presence of a replacement lens after the surgery. The bilateral cataract disability is rated based on visual impairment for the entire period and the General Rating Formula is considered for the period after May 13, 2018. Id. 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. Eye disabilities with visual impairment are rated based on impairment in visual acuity with correction. See 38 C.F.R. §§ 4.75, 4.76. Impairment of central visual acuity warrants a zero percent, or noncompensable, rating when the vision in both eyes is 20/40 (6/12) or better. 38 C.F.R. § 4.79, Diagnostic Code 6066. A ten percent rating is provided for vision in one eye of 20/50 (6/15) and vision in the other of 20/40 (6/12) or 20/50 (6/15) or vision in one eye of 20/70 (6/21) or 20/100 (6/30) with vision in the other of 20/40 (6/12). Id. Review of all the evidence of record reflects that for the entire initial rating period on appeal, the Veteran had bilateral visual acuity with correction of 20/40 or better, both before and after the cataract surgery. See March 2012 VA Treatment Record; December 2012 Private Treatment Record. The Veteran received a VA eye examination in February 2017, a November 2019 private disability benefits questionnaire by Dr. K.M., a November 2019 private disability benefits questionnaire by Dr. B.W., and an October 2020 VA examination. All of the examinations show that the Veteran was diagnosed with cataracts and had previously undergone cataract surgery. The Veteran did not have aphakia. Upon examination, the Veteran was found to have a corrected distance of 20/40 or better in both eyes, in both distance and near vision. There was no anatomical loss, light perception only, extremely poor vision, blindness, astigmatism, or visual field defect. In addition to the service-connected cataracts, the Veteran was diagnosed with macula drusen and found to have diplopia that is correctable with prism due to esophoria in the November 2020 VA examination. However, the examiner determined that the Veteran’s cataracts do not cause any visual impairment, to include diplopia, and that neither macular drusen nor esophoria is due to or aggravated by the now-removed cataracts or pseudophakia. No other evidence, lay or medical, has been received to the contrary. Lastly, for the entire appeal period, the evidence shows that the Veteran has not had any incapacitating episode as defined by the regulations. After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal, the service connected cataracts manifested as bilateral visual acuity of 20/40 or better, without any other visual symptoms or disability attributed to cataracts, which warrants a noncompensable initial disability rating under Diagnostic Codes 6027 and 6066. 38 C.F.R. § 4.79. For these reasons, the preponderance of the evidence is against a finding that a   compensable disability rating is warranted. As the preponderance of the evidence is against a compensable initial disability rating for the service-connected cataracts, the higher initial disability rating claim must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.79, Diagnostic Codes 6027, 6066. 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.